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io 


WAR    POWERS 


UNDER    THE 


CONSTITUTION  OF  THE  UNITED  STATES. 


WILLIAM    WHITING. 


TENTH    EDITION. 


BOSTON: 

LITTLE,    BROWN,    &     COMPANY. 

18  64. 


rdlng  i"   \'-t  ol  Coi  press,  in  the  year  1804,  by 

\\   III.!  A  M      W  II  I   II  NG, 
in  tin-  <'lerk'i  Office  of  I'  urt  of  the  Di.strict  of  Massachusetts. 


PRINTED    BV 
B.ABH    AND    AVBBY, 


TK 


PKEFACE  TO  THE  SECOND   EDITION. 


WAR  POWERS  OF  THE  PRESIDENT,  AND  LEGISLATIVE  POW- 
ERS OF  CONGRESS,  IN  RELATION  TO  REBELLION,  TREASON, 
AND  SLAVERY. 

The  following  pages  were  not  originally  intended  for  publica- 
tion, but  were  written  by  the  author  for  his  private  use.  He  has 
printed  them  at  the  request  of  a  few  friends,  to  whom  the  opinions 
therein  expressed  had  been  communicated  ;  and  he  is  not  unaware 
of  several  errors  of  the  press,  and  of  some  inaccuracies  of  expres- 
sion, which,  in  one  or  two  instances,  at  least,  modify  the  sense  of 
the  statements  intended  to  be  made.  The  work  having  been 
printed,  such  errors  can  conveniently  be  corrected  only  in 
the  "errata?  This  publication  was  principally  written  in  the 
spring  of  1862,  the  chapter  on  the  operation  of  the  Confiscation 
Act  of  July  17th,  1862,  having  been  subsequently  added.  Since 
that  time  President  Lincoln  has  issued  his  Emancipation  Procla- 
mation, and  several  military  orders,  operating  in  the  Free  States, 
under  which  questions  have  arisen  of  the  gravest  importance. 
The  views  of  the  author  on  these  subjects  have  been  expressed 
in  several  recent  public  addresses ;  and,  if  circumstances  permit, 
these  subjects  may  be  discussed  in  a  future  addition  to  this 
pamphlet. 

To  prevent  misunderstanding,  the  learned  reader  is  requested 
to  observe  the  distinction  between  emancipating  or  confiscating 
sla1*  es,  and  abolishing  the  laws  which  sustain  slavery  in  the  Slave 

(i) 


u  ritEi 

brmor  merely  lakes  away  slaves  from  the  possession 

:  the  latter  deprn  es  the  inhabitants 

the  lawMd  right  of  obtaining,  by  purchase  <»r 

of  holding  Blaves.     Emancipation  or   confiscation 

upon  ill'  mally;  but  a  law  abolishing 

S      b  States,  operates  on  all  citizens 

1  law.     It'  all  the  horses 

M  to  I"'  confiscated,  or  appropriated  by 

ut  t.>  juililic  oee,  though  this  proceeding  would  change 

title  t.>  tin-''  horses,  it  would  nol  alter  the  laws  of  .Mas- 

nal    property;    nor  would  it   deprire  our 

,1  righl  to  purchase  and  use  other  ho\ 

afiscation  or  emancipation  of  enemy's  slaves, 

and  t;      I'       fent's    Proclamation  of  the  22d  of  September,  do 

.  as  a  legal  institution  in  the  Stairs;  they  act 

- ;  they  alter  no  local  laws  in  any  of 

:  the)  '1"  not  purport  to  render  slavery  unlawful ;  they 

-  from  the  control  of  rebel  masters. 

1  cease  by  reason  of  the  legal   emancipation  of 

-.  it  will  be  because  Blaves  air  removed;  nevertheless,  the 

-i"ii  slavery  may  remain  in  full  force.     The  death 

on  a  plantation  would  result  in  a  total  1. 

i  much  " property ; "  but  that  loss  would  nut  pre- 

ivner  from  buying  other  negroes,  and  holding  them  by 

I1  ii^t  interfere  with  the  local  law  of  prop- 

E  ;    tion   and  confiscation,  in  like  manner,  do   not 

warily  interfere  with  local  law  establishing  slavery. 

,orto  remove  the  condition  or  . ■  / 

slaves  living  at  any  one  lime,  or  the 

h   Blavery   in   the   sense   of  liberating  all   existing 

ferenl  aid  distinct  from  the  righl  of  repealing 

or  annullii  -  which  sanction  the  holding  of 

or  may  not  be  beyond  the.  reach 
of  tic  owers  of  Congress;  but  if  they  are,  that  fact 


PREFACE.  Ill 

would  not  determine  the  question  as  to  the  right  to  emancipate, 
liberate,  or  to  change  the  relation  to  their  masters  of  slaves  noio 
living ;  nor  the  question  as  to  the  right  of  abolishing  slavery,  in 
the  sense  in  which  this  expression  is  used  when  it  signifies 
the  liberation  of  persons  now  held  as  slaves,  from  the  operation 
of  slave  laws;  while  these  laws  are  still  left  to  act  on  other  per- 
sons who  may  be  hereafter  reduced  to  slavery  under  them. 

It  is  not  denied  that  the  powers  given  to  the  various  depart- 
ments of  government  are  in  general  limited  and  defined ;  nor  is 
it  to  be  forgotten  that  "  the  powers  not  delegated  to  the  United 
States  by  the  constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively,  or  to  the  people."  (Const. 
Amendment,  Art.  X.)  But  the  powers  claimed  for  the  President 
and  for  Congress,  in  this  essay,  are  believed  to  be  delegated  to 
them  respectively  under  the  constitution,  expressly  or  by  neces- 
sary implication. 

The  learned  reader  will  also  notice,  that  the  positions  taken  in 
this  pamphlet  do  not  depend  upon  the  adoption  of  the  most  liberal 
construction  of  the  constitution,  Art.  I.  Sect.  8,  CI.  l,which  is  deemed 
by  eminent  statesmen  to  contain  a  distinct,  substantive  power  to 
pass  all  laws  which  Congress  shall  judge  expedient  "  to  provide  for 
the  common  defence  and  general  welfare."  This  construction  was 
held  to  be  the  true  one  by  many  of  the  original  framers  of  the 
constitution  and  their  associates  ;  among  them  was  George  Mason 
of  Virginia,  who  opposed  the  adoption  of  the  constitution  in  the 
Virginia  convention,  because,  among  other  i*easons,  he  considered 
that  the  true  construction.  (See  Elliott's  Debates,  vol.  ii.  327,  328.) 
Thomas  Jefferson  says,  (Jefferson's  Correspondence,  vol.  iv.  p.  300,) 
that  this  doctrine  was  maintained  by  the  Federalists  as  a  part;/, 
while  the  opposite  doctrine  was  maintained  by  the  Republicans 
as  a  party.  Yet  it  is  true  that  several  Federalists  did  not  adopt 
that  view,  but  Washington,  Adams,  Jefferson,  Madison,  Monroe, 
Hamilton,  Mason,  and  others,  were  quite  at  variance  as  to  the 
true  interpretation   of  that   much   contested    clause.      Southern 


PR1   ' 

the  Btate-nghts  doctrines,   as   tim< 

lopted  the  Btriotesl  oonstruotion  ol 

if  that  clause ;  bat  it  baa  not  yet  been  authorita- 

icd  by  the  Supreme  Court.     Wnatever  maybe  the 

n  of  the  power  oonveyed  in  this  section,  il  is 

admitted  by  all  that  it  < • « « 1 1 1 : > i 1 1 -;  the  power  of  imposing  taxes  to 

an  unlimited  amount,  and  the  right  to  appropriate  the  money  so 

the  common  defence  and  publio  welfare."    Thus  il 

.  thai  the  ii  -_rl  1 1  to  appropriate  private  property  to  publie 

tad   to  provide  compensation  therefor,  as  stated  in   Chap- 

;  the  po*  I  J  to  confiscate  enemy's  property  as 

•it  right  ;  the  power  ol  the  President,  as  commander-in- 

,:i  acl  of  war,  to  emancipate  slaves;  or  the  power  of 

•  s  to  ]  to  aid  the  President,  in  executing  his  mili- 

luties,  by  abolishing  slavery,  or  emancipating  slaves,  under 

\sL  L  S     '    -.  <    .   lv.  as  >r<ir  measures^  essential  to  save  the 

country  from  destruction,  do  not  depend  upon  the  construction 

.  to  the  disputed  clause  above  cited. 

I bserved,  that  a  distinction  is  pointed  out   in 

d  the  legislative  powers  of  Congress,  in  time 

::il  in  time  of  war.     Whenever  the  words  "  the  common 

:.  they  are  intended  to  refer  to  a  time,  not  of  con- 

war,  l>ut   of  actual  open   hostility,  which  requires  the 

•   its  naval  and  military  powers  in  self-defence,  to 

ament  and  the  country  from  destruction. 

tion,  and  Chapters  I.  and  VIIL,  should  be  read  in 

I  hey  relate  to  the  same  Bubjecl  ;  ami  the  reader  will 

in  mind  that,  in  treating  of  the  powers  of  Congress  in  the 

bapter,  it   is  not  asserted  thai  Congress  have,  without  any 

publu  f  justifying  '<>.  the  right  to  appropriate  private  prop- 

f  any  kind  to  public  use.     There  must  always  be  a  justifia- 

ry  delegated  power  of  legislation. 

intained  in  these  pages  that  Congress,  in  time  of 

i  to  abolish  slavery  in  the  States,  by  passing 


PliEFACE. 


laws  rendering  the  holding  of  any  slaves  therein  illegal,  so  long  as 
slavery  is  merely  a  household  or  family,  or  domestic  institution  • 
and  so  long  as  its  existence  and  operation  are  confined  to  the 
States  where  it  is  found,  and  concern  exclusively  the  domestic 
affairs  of  the  Slave  States ;  and  so  long  as  it  does  not  conflict 
with  or  affect  the  rights,  interests,  duties,  or  obligations  which 
appertain  to  the  affairs  of  the  nation,  nor  impede  the  execution 
of  the  laws  and  constitution  of  the  United  States,  nor  con- 
flict with  the  rights  of  citizens  under  them.  Yet  cases  might 
arise  in  which,  in  time  of  peace,  the  abolishment  of  slavery 
might  be  necessary,  and  therefore  would  be  lawful,  in  order  to 
enable  Congress  to  carry  into  effect  some  of  the  express  pro- 
visions of  the  constitution,  as  for  example,  that  contained  in  Art. 
IV.  Sect.  4,  CI.  1,  in  which  the  United  States  guarantee  to  every 
State  in  this  Union  a  republican  form  of  government ;  or  that 
contained  in  Art.  IV.  Sect.  2,  CI.  1,  which  provides  that  citizens 
of  each  State  shall  be  entitled  to  all  the*  privileges  and  immuni- 
ties of  citizens  in  the  several  States. 

It  is  asserted  in  this  essay  that,  when  the  institution  of  slavery 
no  longer  concerns  only  the  household  or  family,  and  no  longer 
continues  to  be  a  matter  exclusively  appertaining  to  the  domestic 
affairs  of  the  State  in  which  it  exists ;  when  it  becomes  a  potent, 
operative,  and  efficient  instrument  for  carrying  on  war  against  the 
Union,  and  an  important  aid  to  the  public  enemy;  when  it 
opposes  the  national  military  powers  now  involved  in  a  gigan- 
tic rebellion ;  when  slavery  has  been  developed  into  a  vast, 
an  overwhelming  war  power,  which  is  actually  used  by  armed 
traitors  for  the  overthrow  of  government  and  of  the  constitu- 
tion ;  when  it  has  become  the  origin  of  civil  war,  and  the 
means  by  which  hostilities  are  maintained  in  the  deadly  struggle 
of  the  Union  for  its  own  existence;  when  a  local  institution 
is  pervejsted  so  as  to  compel  three  millions  of  loyal  colored  sub- 
jects to  become  belligerent  traitors  because  they  are  held  as 
slaves  of  disloyal  masters, — then  indeed  slavery  has  become  an 


\  I  I' It  I    !    \      I 

the  national    wi  Ifare   and  common 

ted  itself  to  the  Beveresl  enforcemonl  of 

nd    military    powers,   i"  which  alone,  under 

titution,    the    people    must    look    to    save    themselves 

ruin.     In    the    lasl    extremity   of  our  contest,  the   ques- 

whether    Blavery   shall    be    rooted    np 

.  or  our   beloved    country   be    torn  asunder  and 

our  1  Imon  desl  royed,  and  our  people 

\      any  rights  of  property,  or  any  claims,  which 

Line  to  have  over  another,  by  whatever  local 

law  they  may  be  sanctioned,  to  be  held,  by  any  just  construction  of 

institution,  as  BUperior  to  the  nation's  righl  of  self-def 
And  can  the  Local  r  law  of  any  section  of  tliis  country 

le  and  break  down  the  obligation  of  the  people  to  maintain 
and   perpetuate  their  own    government?     Slavery   is  no  longer 
after  it  has  become  an  engine  of  war.    The 
country  demands,  at  the  hands  <<\  Congress  and  of  the  President, 
the  ei  f  every  power  they  can  lawfully  put  forth  for  its 

'  of  the  war,  but  as  a  means  of  termi- 
r  the  reb(  llion,  if  by  destroying  slavery  the  republic  may  be 
I  riderations  and  others  have  led  the  author  to 

stated    in    the  following  pages,    "that  Congress 
bolish  slavery,  when  in  time  of  war  its  abolish- 
to  aid  the  commander-in-chief  in  maintaining 

w  w 

-  p  6  rri  (1  to  ,;      Pre!  iii.  and  iv.,  for  remark-: 

/.,  Sect.  6,  clause  1.  relating  to  the  alleged  power  of 

for  the  general  welfare  and  common  defence,"  and,  in 

there  cited,  reference  may  be  had  to  the  speeches  of 

ry,  who  fa  views  of  Mr.  Jefferson.     See  also  Story 

on  tf.  J86. 


CONTENTS  OF  THE  "WAR  POWERS,"  ETC. 


Page 
Pl'EFACE    TO    THE    SECOND    EDITION i 

The  Constitution  —  purpose  for  which  it  was  founded 1 

"  how  violated 1 

"  liberal  and  strict  constructionists 8 

"  powers  we  should  expect  to  find  in  it 10 

contains  powers  to  make  laws  for  peace  and  laws 

for  war 1 1 

"  result,  if  it  denies  the  power  to  save  the  Union.     11 

"  some  leading  questions  under  it  stated 13 

««  powers  not"! delegated  are  reserved Ill 

«  are  limited  and  defined Ill 

"  power  to  provide  for  the  general  welfare  and  com- 

mon defence,  is  not  relied  upon  in  this  work 

as  the  basis  of  argument Ill 

"  authoritative  construction  of -138 

War  —  distinction  between  the  objects  and  the  means  of 7 

Slavery  —  its  unexpected  growth 2 

the  "  privileged  class  " 2 

abolished  by  European  governments 3 

in  1862,  not  slavery  in  1788 4 

are  slaveholders  arbiters  of  peace  and  war  ? 5 

though  hated,  why  it  was  tolerated G 

recognition  of,  not  inconsistent  with  the  perpetuity  of  the 

republic 7 

considered  as  belonging  to  the  domestic  affairs  of  States  ; 

can  government  interfere  with  it  ? 132 

constitutional  rights  over,  not  affected  by  party  platforms. .  131 

domestic  institutions 132 

may  be  interfered  with  by  Congress,  for  its  protection 133 

Congress  may  interfere  against  it 134 

may  be  interfered  with  by  operation  of  militia  laws 134 

may  be  interfered  with  by  laws  regulating  commerce  be- 
tween the  States 13  1 

by  the  power  to  make  treaties 135 

by  the  power  to  suppress  insurrection 137 

right  to  deal  with  it  not  to  be  sought  in  party  platforms. . .   139 
distinction    between    emancipating    slaves    and   abolishing 

slavery preface      i. 

President's  Proclamation  and  the  emancipation  acts — their 

effect preface   ii. 

vii 


mu  0ONTENT& 

Ing   a\\  .iv  |]  ives    ma> 

with  it )  under  the  power  i>>  appro- 

to    public    USe,    as    shown   in 

L  p 17 

:'  the  war  powers  of  Congress,  as 

1  II.  p 34 

i '  lent,     B  shown  in  Chap. 

III.  p 88 

wer  to  punish  treason,  as  shown  in  Chap.  V.  p.    !»:i 

irer  to  punish  rebels,  as  shown  in  Chap.  VII.  p.  1 1  '< 

"  ^^ ! i  ibolished  by  Congress  .  .pref.  iv.  v.  vi. 

CHAPTEB    I. 

The  rial  right  of  the  government  I  riate  private  prop- 

.  either  in  time  of  peace  or  in  time  of  war 17 

The  right  is  foun  17 

I  18 

t  i;  is   19 

All  Y.  laves,  ma;.  ....  I'll 

ts  to  do  military  duty 22 

entitled  to  indemnity  if  their  .slaves  are  used  for 

military  purposes  ? 23 

Indem        to  M  rmona l'4 

ilization  and  militia  laws  on  the  question  of  indemnity 

to                           24 

the  war  power  civil  power  of  Congress 

ty  to  public  use  P 26 

istitution,  showing  the  war  powers  of  Congress. . .  27 
^abject  to  the  same  liability  as  other  property  to  be  ap- 

■    t  war  purposes 28 

I                         danger  of  this  power 29 

Lent  not  in  conflict  with  those  of  Congress 29 

■  '•r  under  the  constitution  to  abolish  slavery 30 


C  II  A  P  T  E  II    II. 

34 

I  n 34 

38 

Declaration  of  essary  on  the  part  of  the  government  to  give 

:  ill  belligerent  powers 38 


CONTENTS.  IX 

Has  government  full  war  powers  against  rebel  citizens  ? 40 

Is  "  suppressing  rebellion"  by  arms  making  war  on  the  citizens  of  the 

United  States,  in  the  sense  of  the  constitution  ? 42 

Rebels  may  be  treated  as  belligerents  and  subjects 44 

The  law  of  nations  is  above  the  constitution 46 

International  belligerent  rights  are  determined  by  the  law  of  nations.. .  17 

Belligerent  right  of  confiscation  of  personal  estate 48 

Prize  courts 48 

Title  by  capture 48 

Constitutional  guarantees  of  civil  rights  to  citizens  in  time  of  peace  not 

applicable  thereto  in  time  of  war 49 

True  application  of  these  constitutional  guarantees 50 

Whether  belligerents  shall  be  allowed  civil  rights  under  the  constitu- 
tion depends  upon  the  policy  of  the  government 51 

The  constitution  allows  confiscation 52 

Military  government  under  martial  law 54 

Civil  rights  changed  by  martial  law 56 

A  severe  rule  of  belligerent  law 57 

Civil  rights  of  loyal  citizens  in  loyal  districts  are  modified  by  the  exist- 
ence of  war 59 

Belligerent  right  to  confiscate  enemy's  real  estate 61 


CHAPTER    III. 

War  power  of  the  President  to  emancipate  slaves 66 

Why  the  power  exists 06 

The  President  the  sole  judge  how  and  when  to  use  it 67 

Powers  of  the  President  not  inconsistent  with  powers  of  Congress  to 

emancipate  slaves 68 

Is  liberation  of  enemy's  slaves  a  belligerent  right  ? 68 

The  law  of  nations  sanctions  emancipation  of  enemy's  slaves 69 

Authority  and  usage  confirm  the  right 74 

How  far  the  government  of  the  United  States,  under  former  adminis- 
trations, have  sanctioned  the  belligerent  right   of   emancipating 

slaves  of  loyal  and  of  disloyal  citizens 74 

War  powers  of  the  President  —  in  general 82 


CHAPTER   IV. 

Bills  of  Attainder 84 

Bills  of  attainder  in  England 84 


\  C0NTEN1 

M 

ti  nt  with  ionstitutioii.il  Liberty 

88 

W                                                  .  i    t 86 

s7 

i«s  prohibited —  bills  of  pains  and  penalties  as  well  aa 

tutional 88 

\                                           5         B9 

1 91 


CH  A  PTE  R    v. 

95 

ire  by  statute  the  punishment  of  treason,  and 

•utional  limitations 95 

\                                              ostructive  treason 95 

L  punish  treaaon  limited 90 

laws 97 

1         a  deflni  d  by  statute 98 

ve  unlimited  power  to  declare  tl.                   nl  of  treason  ..  99 

•  s  of  attainder 100 

tion  of  blood loi 

gush  law loi 

1          tares 102 

Char  .                              inders  of  treason 105 

Technical  1                       \v  construed 106 

True  :.                                              A   \  i  1 1.  S       .  3,  ( 'I.  2 108 

I                             ::npose  fines,  why  not  forfeitures  ? 10!) 

Forfeitures  for  treason  not  limited  to  life  estates 110 


CHAPTER    VI. 

I  gainst  it  —  how  administered 112 

Con!.  •   ol   ls,i2  not  a  bill   of  attainder,  not  an  ex  post  facto 

law ne 


i'II.\  PTEE    VII. 

I  greai  to  declare  the  punishment  of  crimes  against  the 

United  Suites  other  than  treason 1 17 


CONTENTS.  XI 

New  crimes  require  new  penal  laws 1 17 

Confiscation  act  of  1862 1 13 

All  attempts  to  overturn  government  should  be  punished 118 

Act  of  1862,  Sect.  6,  does  not  purport  to  punish  treason 119 

Legal  construction  of  the  act  of  1862 120 

The  severity  of  diiferent  punishments  declared 122 

The  sixth  section  of  the  confiscation  act  of  1862  is  not  within  the  pro- 
hibition of  the  constitution/ Art.  III.  Sect.  1,  CI.  3 123 

Treason  and  confiscation  laws  in  1862  :  their  practical  operation 126 

Legal  rights  of  persons  accused  of  treason 126 

Will  secessionists  indict  and  convict  each  other  ? 127 

How  the  juries  are  selected,  and  their  powers 127 

State  rights  and  secession  doctrines  in  the  jury  room 12S 

Laws  are  most  effective  which  require  no  rebel  to  administer  them 129 

Statutes  of  limitation  will  protect  traitors 130 


CHAPTER    VIII. 

Party  platforms  cannot  alter  the  constitution 131 

Domestic  institutions 132 

What  they  are,  and  when  they  cease  to  be  so 132 

Slavery  —  Congress  may  interfere  to  protect  it 133 

"  "         may  interfere  against  it  by  militia  laws 134 

"  "         may  interfere  with  slavery  in  the  States  by  cutting 

off  the  supply  of  slaves  to  such  States 134 

"  "         may  interfere  by  laws  preventing  commerce  in 

slaves  between  the  States 134 

"  "         may  interfere  by  treaty-making  power 134 

"  question  as  to  indemnity 135 

"  congress  may  interfere  for  suppression  of  rebellion 137 

"  "         may  interfere  to  secure  domestic  tranquillity. .. .  138 

Constitution  —  authoritative  construction  of 138 

"  opinions  of  the  Supreme  Court  upon 139 

"         of  the  framers  of  the  constitution 139 

"               gives  all  powers  necessary  to  public  welfare  and  com- 
mon defence 140 


APPENDIX,  containing  the  Prize  Cases Ill 


I  ONTENTS  OF  MILITARY   ARRESTS. 


Paoi 

1  with  alarm >r,i 

I  by  public  enemies 162 


109 


wer  of 170 

use 170 

•  ration 17'i 

without  warrant 174 

"  D.1   176 

"  military  arr.  -t-  lawful 185 

military^:  by  the  Constitution 171 

"  iking  them  not  liable  to  civil  suit  or  criminal  prose- 

182 

••  on  what  ground  ju-tinable 186 

"  t" 188 

of  innocenl  190 

••  to  ]"  lities r 193 

"  aanot  always  be  disclosed 193 

"  made  by  all  governments  in  time  of  civil  war 196 

<•  who  ought,  and  who  ought  not,  to  be  arrested 198 

arbitrary  d  1   from  discretionary 184 

arbitrary  not  consistent  with  free  government 183 

(Jivii    I  161 

ifeguarda 170 

::t  with  arbitrary  power 183 

I  aint  of  by  compulsory  military  duty  exceeds  temporary 

nt  by  arrest 195 

Civil  Was  -  :i  our  rights  effected  by 162 

i\v 171 

•  ns  criminal  which  might  not  be  so  in  time  of  peace  188 

;    rsons  liable  to  military  as  well  as  civil  tribunals.  ..  188 

■>f 197 

Maktiai.  Law —  what  it  i- 165-187 

foundation  of 165 

its  principles  distinguished  from  arbitrary  power 187 

"  '•         limits  to  all  war  powers 168-200 

xii 


CONTENTS.  Xlll 

Paob 
Martial    Law  —  liability   to,    not    inconsistent   with    liability   to   civil 

process 188 

«'  <<         may  punish  acts  which  in  time  of  peace  would  have 

been  innocent 189 

"  "         territorial  extent  of 167-200 

"               "         how  instituted,  or  put  in  force 202 

Military  Commanders  —  their  powers  and  responsibilities. 167 

"               "         powers  may  be  delegated ;   obedience  to  orders  a  justi- 
fication    182 

"  "         making  arrests,  not  liable  to  civil  suits  or  criminal 

prosecutions 182 

"               "         need  not  always  disclose  cause  of  arrest ••  193 

"               "         their  duty  in  case  of  service  on  them  of  habeas  corpus..  202 

"                "         instructions  of  War  Department 213 

Military  Crimes  —  or  crimes  of  war,  definition  of 188 

M               "         double  liability,  military  and  civil • 188 

"               "         acts  made  such  by  state  of  war 189 

"  <<         may  be  committed  by  persons  not  amenable  to  civil 

process  or  indictment 211 

"               "         prevention  of,  is  the  best  use  to  be  made  of  armies. . . .  193 

<«               <<         prevention  of,  is  the  object  of  most  military  operations  193 
«<               "         prevention  of,  is  the  justification  of  captures  of  prop- 
erty and   military  arrests ;   object  for  which  the 
President  was   authorized,  in  1798,  to  imprison 

aliens 195 

"  "         prevention  of,  authorizes  the  call  by  the  President  of 

the  Army  and  Navy  into  service 195 

Military  Forces  —  constitutionality  of  act  for  enrolling 205 

'<  "         resistance  to  draft 189-199 

"               "         how  to  be  treated 213 

"               "         how  judges  violating  the  law  to  be  treated 213 

"  "         indemnity  claimed   by  persons  arrested,  when  to  be 

granted  and  when  refused 211 

Opinion  —  and  Dissenting  Opinion  in  the  Prize  Cases 141 

"           in  Kees  v.  Governor  Tod 216 

Order  of  the  War  Department 213 

War  Powers  —  have  definite  limits 187 

War  Powers  of  the  President — general  powers 163-165 

<«                       "                   "               power  to  suspend  habeas  corpus ... .  202 

<»                      <<                  <<               power  to  establish  martial  law....  202 


I  \  T  i:  N  T  8 


RETURN  OF  REBELLIOUS  STATES  To  THE  I  NluN. 


Paob 

!  \Y.\t  of  Ideas 229 

lsI 280 

1                                                                                2.'!2 

1  War 

mment,  in  the  beginning  of  the  War,  toward  Rebels 

D  stricta 235 

I   Events 235 

1                                                      '  Territorial  War 236 

■' Tar 287 

•   a  Territorial  Civil 

238 

Laws  of  War 242 

only  by  our  Consent i'it 

l       i  245 

—  Rig           S                aot  admitted 246 

to    8  ildiers   ami    Citizens    must   be   !. 

247 

Plan                                       [amended 248 

Lincoln  in  big                      ,,  |    Proclamation  of 
250 


CONTENTS 

OF 

MILITARY  GOVERNMENT  OF  IIOSTILE  TERRITORY 
IN    TIME    OF    WAR, 


Page 
Preface 259 


CHAPTER     I. 

War,  its  methods  and  its  objects 261 

Government  in  some  form  is  necessary  to  secure  a  conquest 261 

Government,  why  it  is  essential  to  secure  a  conquest 26.1 

Government,  military,  is  a  mild  form  of  hostilities 264 

There  must  be  military  government,  or  no  government 266 

The  right  to  erect  military  government  is  an  essential  part  of  the  war  power, 

is  founded  in  necessity  and  sanctioned  by  authority 267 

Leading  cases  cited 268 


CHAPTER    II. 

The  Constitution  authorizes  the  President  to  establish  military  government. .  269 

Power  not  granted  in  express  terms 271 

Military  government  is  an  act  of  war 272 

Right  organized  liy  courts,  etc 273 

Duty  of  the  conqueror  to  govern  those  whom  he  has  subjugated 273 


CHAPTER    III. 

1  Mstribution  of  powers  under  military  government 274 

Different  kinds  of  law  of  war  —  martial  law,  military  law,  etc 274 

Military  tribunals 275 

Power  given  by  the  Constitution  to  Congress  to  establish  courts  martial,  etc.  276 

Power  of  the  President  to  establish  courts  of  war 276 

]>u  courts  of  war  exercise  judicial  power? 277 

Would  judicial  courts  be  useful  as  war  courts  ' 278 

xv 


!1  N'TS. 


c  II  \  IT  E  R     I  V 

879 

I  279 

M  280 

statute  lau '-'si> 

M  281 

M  I  Scotl 281 

281 

ni  Lincoln 

i  tion  under  military  authority 28  i 

!:  .i  [y,  Sequestration  Commission.  284 

.1  287 

288 

i:  -  v.  dm   290 

to  them 292 

P  i  Slat.'-  public  enemies  ' 293 

thcr  the  inhabitantsof  insurrectionary  States  are  to  be  di 

ued  by  the  political  departments  of  our  govern- 

294-5 

icnt  have  finally  determined  thai  they 

296 

on  thai  subject 206 

i  rtment  on  that  subject 299-304 

ition  of  the  Supreme  Court,  which  has  adopted 
it  was  bound  by  the  Constitu- 
304 


(    II   \  PT  E  B    V. 

D  207 

CH  A  PT  i:  U    VI. 

and  controlled,  and  bow  terminated  by  Con- 

209 

•  .,     r  '■!   I  and  that  >•' 

211 

terminated  by  Congress 212 

oment  will  cease 21:5 

CHAP  TEE    711. 

;  215 

lished  by  the  Commander-in-Chief..   216 


CONTENTS.  XV11 

CHAPTER    VIII. 

The  law  administered  by  military  government 219 

As  to  local  laws  in  conquered  districts,  whether  the  municipal  laws  of  the  con- 
quered district  remain  in  force proprio  vigore  unless  altered,  etc 221 

What  laws  of  the  invading  country  extent  ipso  vigore  over  the  subjugated 

district 221 

The  suppression  of  the  present  rebellion  is  not  the  conquest  of  a  foreign  coun- 
try     221 

Distinction  between  alien  and  public  enemy 221-2 

President's  Proclamation,  effect  of  in  hostile  country  not  under  our  control . . .   222 
U.  S.  judicial  courts  may  be  reestablished,  but  are  at  present  useless  in  the 

rebellious  districts 224 


APPENDIX 


Fleming  vs.  Page,  9  How.  614 326-330 

Cross  vs.  Harrison,  16  How.  189 330-333 

Jecker  vs.  Montgomery,  18  How.  112 333,  334 

Dynes  vs.  Hoover,  20  How.  79 334-336 

Leitensdorfer  vs.  Webb,  20  How.  177 336-338 

Vallandigham's  Case 338-342 

The  Prize  Cases.     (See  "  War  Powci's,"  page  141.) 
Kees  vs.  Todd.     (See  "War  Powers,"  page  216.) 


CONSTITUTION 


OF   THE 


UNITED  STATES  OF  AMERICA. 


INTRODUCTION 


THE  PURPOSE   FOR  WHICH   IT   WAS    FOUNDED. 

The  Constitution  of  the  United  States,  as  declared  in 
the  preamble,  was  ordained  and  established  by  the 
people,  "in  order  to  form  a  more  perfect  union,  estab- 
lish justice,  insure  domestic  tranquillity,  provide  for  the 
common  defence,  promote  the  general  welfare,  and 
secure  the  blessings  of  liberty  to  themselves  and  their 
posterity." 

HOW  IT  HAS   BEEN   VIOLATED. 

A  handful  of  slave-masters  have  broken  up  that  Union, 
have  overthrown  justice,  and  have  destroyed  domestic 
tranquillity.  Instead  of  contributing  to  the  common 
defence  and  public  welfare,  or  securing  the  blessings  of 
liberty  to  themselves  and  their  posterity,  they  have 
waged  war  upon  their  country,  and  have  attempted  to 
establish,  over  the  ruins  of  the  Republic,  an  aristocratic 
government  founded  upon  Slavery. 
1 


nil    UNITED    -  I  \i  i  3. 
in    in-  1 1  u  ri"N  ■     «    i  iir  C0NSTI1 v 

It  is  the  conviction  of  mam  thoughtful  persons, that 

i\  has  now  become  practically  irreconcilable  with 

republican  institutions,  and  thai   it  constitutes,  al   the 

■nt  time,  the  chief  obstacle  to  the  restoration  of 

the  Union.     They  know  thai  Blavery  can  triumph  only 

throwing  the  republic;  they  believe  thai   the 

i  triumph  only  by  overthrowing  Blavery. 

•  i  in:   ruivii  BOED  CLAE 

veholding  communities  constitute  the  only  uprivi' 
:'  persona  who  have  been  admitted  into  the 
i        ii.     They  alone  have  the   right  to  vote  for  their 
as  well  as  for  themselves.     In  the  free  Slates 
citizens   vote   only    for   themselves.     The    former  are 
allowed  to  count,  as  pari  of  their  representative  mini- 
.  three  fifths  of  all   slaves.      If  this   privilege,  which 
accorded  only  to  the  original  States,  had  not  been 
contrary,  as    many  jurists  contend,  to  the 
true  intent  and  meaning  of  the  constitution)  so  as  to 
include  other  State-  subsequently  formed,  the  stability 
'Veininent   would  not   have   been   seriously  endan- 
1  by  tin.-  temporary  toleration  of  this  -  institution," 
although  it  was  inconsistent  with  the  principles  which 
that  instrumenl  embodied,  and  revolting  to  the  senti 
ments  cherished   by  a  people  who  had  issued   to  the 
world  the  Declaration  of  Independence,  and  had  fought 
through  the  revolutionary  war  to  vindicate  and  main- 
tain the  rights  of  man. 

rvi.Mi'   i  I .:  >  GROWTH   OF  SLAVERY. 

Th  n    of    involuntary  servitude,   which    had 

•  •  i.  a-    it.  merited,  the  general  condemnation  of 


INTRODUCTION.  6 

the  leading  southern  and  northern  statesmen  of  the 
country,  —  of  those  who  were  most  familiar  with  its 
evils,  and  of  all  fair-minded  persons  throughout  the 
world,  —  seemed,  at  the  time  when  our  government  was 
founded,  about  to  vanish  and  disappear  from  this  conti- 
nent, when  the  spinning  jenny  of  Crompton,  the  loom 
of  Wyatt,  the  cotton  gin  of  Whitney,  and  the  manu- 
facturing capital  of  England,  combined  to  create  a  new 
and  unlimited  demand  for  that  which  is  now  the  chief 
product  of  southern  agriculture.  Suddenly,  as  if  by 
magic,  the  smouldering  embers  of  slavery  were  rekin- 
dled, and  its  flames,  like  autumnal  fires  upon  the 
prairies,  have  rapidly  swept  over  and  desolated  the 
southern  states ;  and,  as  that  local,  domestic  institution, 
which  seemed  so  likely  to  pass  into  an  ignominious  and 
unlamented  grave,  has  risen  to  claim  an  unbounded 
empire,  hence  the  present  generation  is  called  upon  to 
solve  questions  and  encounter  dangers  not  foreseen  by 
our  forefathers. 

SLAVERY  ABOLISHED  BY   EUROPEAN  GOVERNMENTS. 

In  other  countries  the  scene  has  been  reversed. 
France,  with  unselfish  patriotism,  abolished  slavery  in 
1794;  and  though  Napoleon  afterwards  reestablished 
servitude  in  most  of  the  colonies,  it  was  finally  abolished 
in  1848.  England  has  merited  and  received  her  highest 
tribute  of  honor  from  the  enlightened  nations  of  the 
world  for  that  great  act  of  Parliament  in  1833,  whereby 
she  proclaimed  universal  emancipation. 

In  1844,  King  Oscar  informed  the  Swedish  states  of 
his  desire  to  do  away  with  involuntary  servitude  in  his 
dominions;  in  1846  the  legislature  provided  the  pecu- 


rill     UNITED    STATES. 

•.  means  for  carrying  thai  measure  into  effecl  ;  and 
now  all  the  Blaves  have  ' >me  freemen. 

Charles  VIII.  Kin  i  f  Den  mark,  celebrated  the  anni- 
.v\  of  t!i«'  birth  of  the  Queen  Dowager  by  abol- 
ishing slavery  in  his  dependencies,  on  the  28th  of 
July,  is  17. 

In  1 862,  Russia  has  consummated  the  lasl  and  grandest 
•  ;'  emancipation  of  modern  tim< 

While  Europe  has  thus  practically  approved  of  the 
leading  principle  of  the  American  constitution,  as 
founded  on  justice,  and  as  essential  to  public  welfare, 
the  United  States,  as  represented  by  the  more  recent  ad- 
ministrations, have  practically  repudiated  and  abandoned 
it.  Europe,  embarrassed  By  conservative  and  monar- 
chical institutions,  adopts  the  preamble  to  that  instru, 
ment,  as  a  just  exposition  of  the  true  objects  for  which 
governments  should  be  established,  and  accordingly 
abolishes  slavery  —  while,  in  this  country,  in  the  mean 
time,  slavery,  having  grown  strong,  seeks  by  open  rebel- 
lion to  break  up  the  1  union,  and  to  abolish  republican  de- 
mocracy. 

WKKY   IN  i-v-'   NOT   3LAVEKT   IN  1788. 

Bowever  harmless  thai  institution  may  have  been  in 
L788,  ii  is  now  believed  by  many.  that,  with  few  but 
honorable  exceptions,  the  slave-masters  of  the  present 
day.  the  privileged  class,  cannot,  or  will  not,  conduct  them- 
selves to  render  it  longer  possible,  by  peaceable 
:iation  with  them,  to  preserve  ■•  the  Union,"  to 
Wish  justice,"  "insure  dome-tic  tranquillity,  the 
genera]  •  .  the  common  defence,  or  the  blessings 
of  liberty  to  oui  or  our  posterity."  And  since  the 
wid-  -pi  cud   hut   secrel    conspiracies  of  traitors  in  the 

•  To  the  above  examples  we  must  add  that  of  the  Dutch  West  Indies, 
where  the  law  emancipating  the  Blaves  goes  into  operation  in  July,  1863. 


INTRODUCTION.  0 

slave  states  for  the  last  thirty  years  ;  their  hatred  of  the 
Union,  and  determination  to  destroy  it;  their  abhor- 
rence of  republican  institutions,  and  of  democratic 
government ;  their  preference  for  an  "  oligarchy  with 
slavery  for  its  corner  stone,"  have  become  known  to  the 
people,  —  their  causeless  rebellion  ;  their  seizure  of  the 
territory  and  property  of  the  United  States  ;  their  siege 
of  Washington ;  their  invasion  of  States  which  have 
refused  to  join  them  ;  their  bitter,  ineradicable,  and 
universal  hatred  of  the  people  of  the  free  States,  and 
of  all  who  are  loyal  to  the  government,  have  produced 
a  general  conviction  that  slavery  (which  alone  has 
caused  these  results,  and  by  which  alone  the  country 
has  been  brought  to  the  verge  of  ruin)  must  itself  be 
terminated;  and  that  this  "privileged  class"  must  be  abol- 
ished ;  otherwise  the  unity  of  the  American  people  must 
be  destroyed,  the  government  overthrown,  and  consti- 
tutional liberty  abandoned. 

To  secure  domestic  tranquillity  is  to  make  it  certain 
by  controlling  power.  It  cannot  be  thus  secured  while 
a  perpetual  uncontrollable  cause  of  civil  war  exists. 
The  cause,  the  means,  the  opportunity  of  civil  war  must 
be  removed;  the  perennial  fountain  of  all  our  national 
woes  must  be  destroyed ;  otherwise  "  it  will  be  in  vain 
to  cry.  Peace  !  peace  !    There  is  no  peace." 

ARE   SLAVEHOLDERS    ARBITERS   OF   PEACH  AND  WAR? 

Is  the  Union  so  organized  that  the  means  of  involving 
the  whole  country  in  ruin  must  be  left  in  the  hands  of 
a  small  privileged  class,  to  be  used  at  their  discretion  ? 
Must  the  blessing  of  peace  and  good  government  be 
dependent  upon  the  sovereign  will  and  pleasure  of  a 
handful  of  treasonable  and  unprincipled  slave-masters? 


nil  iii>\    OF    nil.   l  Mill'    BTATE8. 

II. i-  the  constitution  bound  together  the  peaceable 
n  with  the  insane  assassin,  bo  thai  his  murderous 
knife  cannol  lawfully  be  wrenched  from  his  grasp  even 
tlfdefen 
If  tin-  destruction  of  slavery  be  necessary  to  save 
the  country  from  defeat,  disgrace,  and  ruin. — and  if,  at 
the  Bame  time,  the  constitution  guarantees  the  perpe- 
tuity of  slavery,  whether  the  country  is  saved  or  lost, 
—  it  is  time  that  the  friends  of  tin-  government  should 
awake,  and  realize  their  awful  destiny.  If  the  objects 
for  which  our  government  was  founded  can  lawfully  be 
Secured  Only  BO  far  as  they  do  not  interfere  with  the 
pretensions  of  slavery,  we  must  admit  that  the  inter- 
of  slave-masters  stand  first,  and  the  welfare  of  the 
people  of  the  United  States  stands  last,  under  the 
guarantees  of  the  constitution.  If  the  Union,  the  con- 
stitution, and  the  laws,  like  Laocoon  and  his  sons,  are 
to  he  strangled  and  crushed,  in  order  that  the  unre- 
lenting  serpent  may  live  in  triumph,  it  is  time  to 
determine  which  of  them  i-  next  worthy  to  be  saved. 
Such  was  not  the  Union  formed  by  our  forefathers. 
Such  i-  not  the  Union  the  people  intend  to  preserve. 
They  mean  to  uphold  a  Union,  under  the  constitution, 
i,tf<  rj>r<!<<l  by  common  sense ;  a  g<>r<run><  nl  able  to  attain 
results  worthy  of  a  great  and  free  people,  and  for  which 
it  was  founded j  a  republic,  representing  the  sovereign 
majesty  of  the  whole  nation,  clothed  with  ample  powers 
to  maintain  it-  supremacy  forever.  They  mean  that 
liberty  and  union  shall  be  "one  and  inseparable." 

WHY  SLAVERY,  THOUGH  SATED,  WAS  TOLERATED. 

It  h  true,  that  indirectly,  and  for  the  purjwse  of  a  more 
of  direct  faxes,  the  framers  of  the  con- 


INTRODUCTION.  7 

stitution  tolerated,  while  they  condemned  slavery;  but 
they  tolerated  it  because  they  believed  that  it  would 
soon  disappear.  They  even  refused  to  allow  the  char- 
ter of  their  own  liberties  to  be  polluted  by  the  mention 
of  the  word  "  slave."  Having  called  the  world  to  witness 
their  heroic  and  unselfish  sacrifices  for  the  vindication 
of  their  own  inalienable  rights,  they  could  not,  con- 
sistently with  honor  or  self-respect,  transmit  to  future 
ages  the  evidence  that  some  of  them  had  trampled 
upon  the  inalienable  rights  of  others. 

RECOGNITION    OF    SLAVERY    NOT    INCONSISTENT    WITH    THE    PERPE 
TUITY    OF  THE   REPUBLIC. 

Though  slavery  was  thus  tolerated  by  being  ignored, 
we  should  dishonor  the  memory  of  those  who  organized 
that  government  to  suppose  that  they  did  not  intend 
to  bestow  upon  it  the  power  to  maintain  its  own 
authority  —  the  right  to  overthrow  or  remove  slavery, 
or  whatever  might  prove  fatal  to  its  permanence,  or 
destroy  its  usefulness.  We  should  discredit  the  good 
sense  of  the  great  people  who  ordained  and  established 
it,  to  deny  that  they  bestowed  upon  the  republic,  cre- 
ated by  and  for  themselves,  the  right,  the  duty,  and  the 
powers  of  self-defence.  For  self-defence  by  the  govern- 
ment was  only  maintaining,  through  the  people's  agents, 
the  right  of  the  people  to  govern  themselves. 

DISTINCTION  BETWEEN   THE   OBJECTS  AND   THE   MEANS   OF  WAR. 

We  are  involved  in  a  war  of  self-defence. 

It  is  not  the  object  and  purpose  of  our  hostilities  to 
lay  waste  lands,  burn  bridges,  break  up  railroads, 
sink  ships,  blockade  harbors,  destroy  commerce,  cap- 
ture, imprison,  wound,  or  kill  citizens ;  to  seize,  appro- 


nil  ii. >N    OP    mi     i  Mil  P   BTATE& 

confiscate,   or    destroy    private    property;    to 

with    families,  or   domestic    institutions;    to 

remove,  employ,  liberate,  or  arm  Blaves;    to  accumu- 

national  debt,  impose  nnv  ami  burdensome  taxes; 

or  to  cause  thousands  of  loyal  citizens  to  be  slain  in 

battle.     But,  a-  rf carrying  <>n  the  contest,  it  lias  be- 

-  ii\  ami  lawful  to  1  i\  waste,  burn,  sink,  de- 

.  blockade,  wound,  capture, and  kill ;  to  accumulate 
debt,  la\  ind  expose  soldiers  to  the  peril  of  deadly 

combat  Such  are  tin1  ordinary  results  ami  incidents  of 
war.  If.  in  further  prosecuting  hostilities,  the  liberating, 
employing,  or  arming  of  Blaves  shall  he  deemed  con- 

nt  for  the  more  certain,  speedy,  and  effectual  over- 
throw of  the  enemy,  the  question  will  arise,  whether 
the  constitution   prohibits  those   measures  as  acts  of 

imate  war  against  rebels,  who.  having  abjured  that 
constitution  ami  having  openly  in  anus  defied  the  gov- 
ernment, claim  for  themselves  only  the  rights  of  bel- 
li n. 
It  i-  fortunate  for  America  that  securing  the  liberties 
of  a  great  people  by  giving  freedom  to  four  millions  of 
bondmen  would  he  in  accordance  with  the  dictates  of 
justice  and  humanity.  If  the  preservation  of  the  Union 
required  tic  enslavemenl  of  four  millions  of  freemen, 
very  different  considerations  would  be  presented. 

LIBERAL   AM-   STRICT  CONSTRUCTIONISTS. 

The  friends  and  defender-  of  the  constitution  of  the 

United    S  of  America,  ever  since    its   ratification, 

ha ve  expressed  widely  different  opinions  regarding  the 

limitation   of  the  powers   of  government  in  time  of 

e,  no  less  than   in  time  of  war.     Those  who  have 

n  led  for  the  most  narrow  and  technical  construe- 


INTRODUCTION. 


9 


tion,  having  stuck  to  the  letter  of  the  text,  and  not 
appreciating  the  spirit  in  which  it  was  framed,  are 
opposed  to  all  who  view  it  as  only  a  frame  of  gov- 
ernment, a  plan-in-outline,  for  regulating  the  affairs  of  an 
enterprising  and  progressive  nation.  Some  treat  that 
frame  of  government  as  though  it  were  a  cast-iron 
mould,  incapable  of  adaptation  or  alteration  —  as  one 
which  a  blow  would  break  in  pieces.  Others  think  it  a 
hoop  placed  around  the  trunk  of  a  living  tree,  whose 
growth  must  girdle  the  tree,  or  burst  the  hoop.  But 
sounder  judges  believe  that  it  more  resembles  the  tree 
itself,  —  native  to  the  soil  that  bore  it,  —  waxing  strong 
in  sunshine  and  in  storm,  putting  forth  branches,  leaves, 
and  roots,  according  to  the  laws  of  its  own  growth,  and 
flourishing  with  eternal  verdure.  Our  constitution,  like 
that  of  England,  contains  all  that  is  required  to  adapt 
itself  to  the  present  and  future  changes  and  wants  of 
a  free  and  advancing  people.  This  great  nation,  like  a 
distant  planet  in  the  solar  system,  may  sweep  round  a 
wide  orbit ;  but  in  its  revolutions  it  never  gets  beyond 
the  reach  of  the  central  light.  The  sunshine  of  con- 
stitutional law  illumines  its  pathway  in  all  its  changing 
positions.  We  have  not  yet  arrived  at  the  "  dead  point" 
where  the  hoop  must  burst — the  mould  be  shattered  — 
the  tree  girdled  —  or  the  sun  shed  darkness  rather  than 
light.  By  a  liberal  construction  of  the  constitution,  our 
government  has  passed  through  many  storms  unharmed. 
Slaveholding  States,  other  than  those  whose  inhabitants 
originally  formed  it,  have  found  their  way  into  the 
Union,  notwithstanding  the  guarantee  of  equal  rights 
to  all.  The  territories  of  Florida  and  Louisiana  have 
been  purchased  from  European  powers.  Conquest  has 
added  a  nation  to  our  borders.  The  purchased  and  the 
2 


1 1  n  HON    OP    mi     i  SITED    STATES. 

conq  >D8  are  now  legally  a  part  of  the  United 

[Tie  admission  of  new  States  containing  a  privi- 

.  the  incorporation  into  our  Union  of  b  for- 

people,  art'  held  to  be  lawful  and  valid  by  all  the 

coui'  ••  country.     Thus  far  from  the  old  anchor- 

we  Bailed  under  the  Bag  of u  public  aecessity," 

neral  welfare,"  or " common  defence."    Vet  the  great 

charter  <>t'  our  political  rights  -.-till   lives;"   and  the 

tion  of  to-day  is,  whether  thai   instrument,  which 

bas  ii"!  prevented  America  from  acquiring  one  country 

by  purchase,  and  another  by  conquest,  will  permit  her 

POWERS   WE  BHOULD   EXPECT  TO   FIND. 

If  the  ground-plan  of  our  government  was  intended 
to  lie  more  than  a  temporary  expedient. — if  it  was  de- 
accordyig  to  the  declaration  of  its  authors,fora 
perpetual  Union,  —  then  it  will  doubtless  be  found,  upon 
fair  examination,  to  contain  whatever  is  essential  to 
cany  that  design  into  effect     Accordingly,  in  addition 
to   provisions   lor  adapting  it  to  great  changes  in  the 
situation  and  circumstances  of  the   people  by  amend- 
we  find   that   powers  essential  to  its  own  perpe- 
tuity   are    vested    in    the    executive   and    legislative 
irtments,  to  he  exercised  acco rding  to  their  discretion, 
for  the  good  of  the  country  —  powers  which,  however 
dang         a,  must  he  intrusted  to  every  government,  to 
enable  it  to  maintain   its  own  existence,  and  to  protect 
the  rights  of  the  people.     Those  who  founded  a  gov- 
ermenl  for  themselves  intended  that  it  should  never  be 
overthrown;   nor  even   altered,  except  by  those  under 
whose   authority  it  was    established.     Therefore    they 
■  to    the    President,  and    to  Congress,  the    means 


INTRODUCTION.  11 

essential  to  the  preservation  of  the  republic,  but  none 
for  its  dissolution. 

LAWS  FOR  PEACE,  AND  LAWS  FOR  WAR. 

Times  of  peace  have  required  the  passage  of  numer- 
ous statutes  for  the  protection  and  development  of 
agricultural,  manufacturing,  and  commercial  industry, 
and  for  the  suppression  and  punishment  of  ordinary 
crimes  and  offences.  A  state  of  general  civil  war  in 
the  United  States  is,  happily,  new  and  unfamiliar. 
These  times  have  demanded  new  and  unusual  legis- 
lation to  call  into  action  those  powers  which  the  con- 
stitution provides  for  times  of  war. 

Leaving  behind  us  the  body  of  laws  regulating  the 
rights,  liabilities,  and  duties  of  citizens,  in  time  of  public 
tranquillity,  we  must  now  turn  our  attention  to  the 
reserved  and  hitherto  unused  powers  contained  in  the 
constitution,  which  enable  Congress  to  pass  a  body  of 
laws  to  regulate  the  rights,  liabilities,  and  duties  of 
citizens  in  time  of  war.  We  must  enter  and  explore 
the  arsenal  and  armory,  with  all  their  engines  of  defence, 
enclosed,  by  our  wise  forefathers  for  the  safety  of  the 
republic,  within  the  old  castle  walls  of  that  constitu- 
tion ;  for  now  the  garrison  is  summoned  to  surrender ; 
and  if  there  be  any  cannon,  it  is  time  to  unlimber  and 
run  them  out  the  port-holes,  to  fetch  up  the  hot  shot, 
to  light  the  match,  and  hang  out  our  banner  on  the 
outer  walls. 

THE  UNION  IS  GONE    FOREVER    IF  THE    CONSTITUTION   DENIES    THE 
POWER  TO   SAVE   IT. 

The  question  whether  republican  constitutional  gov- 
ernment shall  now  cease  in  America,  must  depend  upon 


l'J  •-  mi.   i  mii  D   Bl  \  I 

truction  given  bo  these  hitherto  unused  powers. 

ie  who  desire  to  Bee  an   end  of  this  government 

will  deny  thai  it  has  the  ability  to  save  itself     Many 

ih'u  inquiries  have  arisen  in  relation  to  the  existence 

and    limitation   of   it-    powers.     Must    the    successful 

tion  of  war  againsl  rebels,  the  preservation  of 

ii. il  honor,  and  securing  of  permanent   peace, —  if 

attainable  only  by  rooting  out   the  evil  which  caused 

and  maintains  the  rebellion,  — be  effected  by  desti 

-    solemnly  guaranteed    by    the    constitution 
are   defending?      [f   bo,   the    nexl    question   will 
be,  whether  the  law  of   Belf-defence   and   overwhelm- 
ssity  will  not  justify  the  country  in   denying 
ebels   and  traitors   in  arms  whatever  rights  they 
or  their   friends    may   claim    under  a    charter   which 
they  have  repudiated,  and  have  armed  themselves  to 
overthrow  and   destroy?     Can    one    party  break    the 
contract,  and  justly  hold  the  other  party  bound  by  it? 
1<  the  constitution  to  be  bo  interpreted  that  rebels  and 
traitor.-  cannot  be  put  down?     Are  we  so  hampered, as 
some  have  asserted,  that  even  if  war  end  in  reestab- 
lishing the  Union,  and  enforcing  the  laws  over  all  the 
land,  the  results  of  victory  will  be  turned  against  us, 
and  the  conquered  enemy  may  then  treat  us  as  though 
they  had  been  victors?     Will  vanquished  criminals  be 
their  rights  to  the  same  political  supe- 
iver  the  citizens  of  Free  State-,  which,  as  the 
only  "privileged  class,"  they  have  hitherto  enjoyed? 

Have  they  who  .dour  have  made  this  rebellion,  while 
committing  treason  and  other  high  crimes  against  the 
iblic,  a  protection,  an  immunity  against  punishment 
for  these  crimes,  whether  by  forfeiture  of  life  or  prop- 
on  of  any  clause  in  the  constitution?    Can 


INTRODUCTION.  13 

government,  the  people's  agent,  wage  genuine  and  ef- 
fectual war  against  their  enemy  ?  or  must  the  soldier  of 
the  Union,  when  in  action,  keep  one  eye  upon  his  rifle, 
and  the  other  upon  the  constitution  ?  Is  the  power  to 
make  war,  when  once  lawfully  brought  into  action,  to 
be  controlled,  baffled,  and  emasculated  by  any  obliga- 
tion to  guard  or  respect  rights  set  up  by  or  for  belliger- 
ent traitors? 

THE   LEADING   QUESTIONS   STATED. 

What  limit,  if  any,  is  prescribed  to  the  war-making 
power  of  the  President,  as  Commander-in-Chief  of  the 
army  and  navy  of  the  United  States  ?  What  authority 
has  Congress  to  frame  laws  interfering:  with  the  ordi- 
nary  civil  rights  of  persons  and  property,  of  loyal  or 
disloyal  citizens,  in  peaceful  or  in  rebellious  districts; 
of  the  enemy  who  may  be  captured  as  spies,  as  pirates, 
as  guerrillas  or  bush-whackers ;  as  aiders  and  comforters 
of  armed  traitors/  or  as  soldiers  in  the  battle-field  ? 
What  rights  has  Congress,  or  the  President,  in  relation 
to  helUgerent  districts  of  country ;  in  relation  to  slaves 
captured  or  escaping  into  the  lines  of  our  army,  or 
escaping  into  Free  States ;  or  slaves  used  by  the  enemy 
in  military  service ;  or  those  belonging  to  rebels,  not 
so  used  ?  Whether  they  are  contraband  of  war  ?  and 
whether  they  may  be  released,  manumitted,  or  emanci- 
pated, and  discharged  by  the  civil  or  military  authority  ? 
or  whether  slaves  may  be  released  from  their  obligation 
to  serve  rebel  masters  ?  and  whether  slavery  may  be 
abolished  with  or  without  the  consent  of  the  masters, 
as  a  military  measure,  or  as  a  legislative  act,  required 
by  the  public  welfare  and  common  defence  ?  Where 
the  power  to  abolish  it  resides,  under  the  constitution  ? 


1  I  N    OP    THE    I  M  Hi'   BTATES. 

And  whether  there  is  anj  restrainl  or  limitation  upon 
tin*  power  of  Congress  to  punish  treason?     What  are 
the  rights  of  governmenl  over  the  private  property  of 
What  are  the  rights  and  liabilities  of 
traitor-'.'    These  and  similar  inquiries  are  frequently 
made  anion--  tin'  plain  people j  and  it  is  for  the  pur- 
of  explaining  some  of  the  doctrines  of  law  appli- 
cable to  them,  thai  the  following  suggestions  have  been 
1. 


PUBLIC    USE    OF    PRIVATE    PROPERTY.  15 


CHAPTER    I. 

THE  CONSTITUTIONAL  RIGHT  OF  THE  GOVERNMENT  TO  AP- 
PROPRIATE PRIVATE  PROPERTY  TO  PUBLIC  USE,  EITHER 
IN   TIME   OF   PEACE   OR  IN   TIME   OF  WAR. 

The  general  government  of  the  United  States  has,  in 
time  of  peace,  a  legal  right,  under  the  constitution,  to  appro- 
priate to  public  use  the  private  property  of  any  subject,  or 
of  any  number  of  subjects,  owing  it  allegiance. 

Each  of  the  States  claims  and  exercises  a  similar 
right  over  the  property  of  its  own  citizens. 

THE  RIGHT  IS  FOUNDED  IN  REASON. 

All  permanent  governments  in  civilized  countries 
assert  and  carry  into  effect,  in  different  ways,  the 
claim  of  "  eminent  domain ; "  for  it  is  essential  to 
their  authority,  and  even  to  their  existence.  The 
construction  of  military  defences,  such  as  forts,  arse- 
nals, roads,  navigable  canals,  however  essential  to  the 
protection  of  a  country  in  war,  might  be  prevented  by 
private  interests,  if  the  property  of  individuals  could 
not  be  taken  by  the  country,  through  its  government. 
Internal  improvements  in  time  of  peace,  however  im- 
portant to  the  interests  of  the  public,  requiring  the 
appropriation  of  real  estate  belonging  to  individuals, 
might  be  interrupted,  if  there  were  no  power  to  take, 
without  the  consent  of  the  owner,  what  the  public  use 
requires.  And  as  it  is  the  government  which  protects 
all  citizens  in  their  rights  to  life,  liberty,  and  property, 
they  are  deemed  to  hold  their  property  subject  to  the 


MM     l  Mil  D    BTATES. 

claim  of  the  Bupreme  protector  to  take  il   from  them 

when  demanded  by  "public  welfare."     It  is  under  this 

power  thai   the  State  of  Massachusetts 

law  tli«'  prival  -  of  her  citizens ;   and 

even  authorizes  Beveral  classes  of  corporations  to 

land,  against  the  will  of  the  proprietor,  for  public 

and    benefit      Railroads,   canals,   turnpikes,   tele* 

graphs,   bridges,  aqueducts,   could    never    have    Ween 

constructed    were   the   existence   of  this   great   right 

!.      Ami   the  TITLE  to    that   interest   in    real  estate, 
which  is  thus  acquired  by  legal  seizure,  is  deemed  by 
all  the  ci. nits  of  this  commonwealth  to  be  as  legal,  and 
.  as  if  purchased  and  conveyed  by  deed,  - 

under  the  hand  and  seal  of  the  owner. 

INDEMNITY   is    REQUIRED. 

But,  when  individuals  are  called   upon  to  give  up 

wh.it    is  their  own  for  the  advantage  of  the  commu- 

nity,  justice   requires  that   they  should  be  fairly  com- 

pensated  for  it:   otherwise   public  burdens  would  be 

shared  unequally.     'I'd  secure  the  right  to  indemnifi- 

tion,  which  was  omitted  in  the  original  constitution 

•hi-   United  States,  an  amendment  was  added,  which 

provides,  (Amendments,  Art.   V.  last  clause,)  u  Nor  shall 

■  /■///  be  taken  for  public  use  without  just  compen* 

The  language  of  this  amendment  admits  the  right  of 
ited  States  to  take  private  property  for  public 
mendment,  being  now  a  part  of  the  consti- 
tution, leave-  that  right  no  longer  open  to  question,  if 
it  e\  questioned. 

.ro  found  in  the  constitution  of  Massachusetts,   and 


PUBLIC    USE    OF   PRIVATE  PROPERTY.  17 

In  guarding  against  the  abuse  of  the  right  to  take 
private  property  for  public  use,  it  is  provided  that  the 
owner  shall  be  entitled  to  be  fairly  paid  for  it ;  and 
thus  he  is  not  to  be  taxed  more  than  his  due  share  for 
public  purposes. 

It  is  not  a  little  singular  that  the  framers  of  the 
constitution  should  have  been  less  careful  to  secure 
equality  in  distributing  the  burden  of  taxes.  Sect.  8 
requires  duties,  imposts,  and  excises  to  be  uniform  through, 
out  the  United  States,  but  it  does  not  provide  that  taxes 
should  be  uniform.  Although  Art.  I.,  Sect.  9,  provides 
that  no  capitation  or  other  direct  tax  shall  be  laid  unless 
in  proportion  to  the  census,  yet  far  the  most  important 
subjects  of  taxation  are  still  unprotected,  and  may  be 
unequally  assessed,  without  violating  any  clause  of 
that  constitution,  which  so  carefully  secures  equality 
of  public  burdens  by  providing  compensation  for  pri- 
vate property  appropriated  to  the  public  benefit. 

"PUBLIC  USE." 

What  is  "public  use  "  for  which  private  property  may 
be  taken  ? 

Every  appropriation  of  property  for  the  benefit  of  the 
United  States,  either  for  a  national  public  improvement, 
or  to  carcy  into  effect  any  valid  law  of  Congress  for  the 
maintenance,  protection,  or  security  of  national  inter- 
ests, is  "  public  use"  Public  use  is  contradistinguished 
from  private  use.  That  which  is  for  the  use  of  the  country, 
however  applied  or  appropriated,  is  for  public  use. 

Public  use  does  not  require  that  the  property  taken 
shall  be  actually  used.  It  may  be  disused,  removed,  or 
destroyed.  And  destruction  of  private  property  may  be 
the  best  public  use  it  can  be  put  to. 


\    OF   'nil:   i  MiT  D   BTAT]  S. 

.  owned  1 » %   a   private  corporatioiij 

•■•I  as  to  endanger  a  military  work  upon 

the  bank  of  n  river.     The  n  of  i  bal   bridge  to 

a  military  advantage  would  be  appropriating  it  to 

£  i  also  the  blowing  up  or  demolition  of  buildings  in 
ty,  for  the  purpose  of  preventing  a  general  confla- 
ion,  would  be  an  appropriation  of  them  to  public 
Hon  of  arms,  or  other  munitions  of  war, 
belonging  to  private  persons,  in  order  to  prevent  their 
falling  into  p  ion  of  the  enemy,  would  be  applying 

them  to  /»''  Congress  has   power  to  pass  laws 

providing  for  the  common  defence  and  general  welfare, 
under  Art  [.Sect  8ofthe  constitution;  and  whenever, 
in  their  judgment,  the  common  defence  or  general 
welfare  requires  them  to  authorize  the  appropriation  of 
private  property  to  public  use, —  whether  that  use  he; 
the  employment  or  destruction  of  the  property  taken,  —  they 
have  the  righl  to  pass  such  Laws;  to  appropriate  pri- 
vate property  in  that  way  ;  and  whatever  is  done  with 
it  is  "public  use,"  and  entitles  the  owner  to  just  com- 
pensation therefor. 

ALL   !  PROPERTY,   INCLUDING    SLAVES,   MAY   BE  SO  APPRO- 

PRIATED. 

There  is  no  re  i  as  to  the  kind  or  character  of 

private    property   which   may   he    lawfully   thus   appro- 

>.  |i  srsonal  estate,  rights 
in  action  or  in  possession,  obligations  for  money,  or  for 
labor  and  Thus   the   obligations  of  minor  chil- 

dren to  their  parents,  of  apprentices  to  their  masters. 
and  of  other  persons  owing  labor  and  service  to  their 
may  lawfully  be  appropriated  to  public  use,  or 


PUBLIC    USE    OP   PRIVATE   PROPERTY.  19 

discharged  and  destroyed,  for  public  benefit,  by  Con- 
gress, with  the  proviso  that  just  compensation  shall  be 
allowed  to  the  parent  or  master. 

Our  government,  by  treaty,  discharged  the  claims 
of  its  own  citizens  against  France,  and  thus  appro- 
priated private  property  to  public  use.  At  a  later 
date  the  United  States  discharged  the  claims  of  certain 
slave  owners  to  labor  and  service,  whose  slaves  had 
been  carried  away  by  the  British  contrary  to  their 
treaty  stipulations.  In  both  cases  indemnity  was 
promised  by  our  government  to  the  owners;  and  in 
case  of  the  slave  masters  it  was  actually  paid.  By 
abolishing  slavery  in  the  District  of  Columbia,  that 
which,  was  considered  for  the  purposes  of  the  act  as 
private  property  was  appropriated  to  public  use,  with 
just  compensation  to  the  owners ;  Congress,  in  this 
instance,  having  the  right  to  pass  the  act  as  a  local, 
municipal  law;  but  the  compensation  was  from  the 
treasury  of  the  United  States. 

During  the  present  rebellion,  many  minors,  appren- 
tices, and  slaves  have  been  relieved  from  obligation  to 
their  parents  and  masters,  the  claim  for  their  services 
having  been  appropriated  to  public  use,  by  employing 
them  in  the  military  service  of  the  country. 

That  Congress  should  have  power  to  appropriate  every 
description  of  private  property  for  public  benefit  in  time 
of  war,  results  from  the  duty  imposed  on  it  by  the 
constitution  to  pass  laws  "providing  for  the  common 
defence  and  general  welfare." 

Suppose  that  a  large  number  of  apprentices  desired 
to  join  the  army  as  volunteers  in  time  of  sorest  need, 
but  were  restrained  from  so  doing  only  by  reason  of 
their  owing  labor  and  service  to  their  employers,  who 


S    OP    mi:    i  NITED 

;.illv  with  them  citizens  and  subjects  of  this 
rnmentj  would  any  one  doubt  or  deny  the  right 
tn   accept    these   apprentices 

;  hem  from  the  obligation  of  their 
indentures,  providing  just   compensation  to  their  em- 
ploy) their   services?      Suppose    that 
volunteers  owed  labor   and  service    for   life,  as 
id  of  owing  it  for  a  term  of  years;  what. 
diffi  :               il'l  it  make  as  to  the  right  of  government 
to  use  their  services,  and  discharge  their   obligations, 
or  as    to    the    liability    to    indemnify    the    masters  1 
The    right  of    the    minor,    the 
apprentice,  and   the  slave,   for  public  benefit,  bel< 
to  the    United    States,     The   claims  of  all   American 
citizens  upon  their  services,  whether  by  local  law,  or 
immoD  law,  or  by  indentures,  can  be  annulled  by 
same   power,  for   the   same    reason-,  and    under   the 
trictions  that  govern  the  appropriation  of  any 
r  private  property  to  public  use. 

I  Hi:   UNITED  STATES    M\V    REQUIRE  A.LL   SUBJECTS  TO  DO   MILITARY 

Dl   IV. 

Slaves,    as    well    as    apprentices    and    minors,  are. 
equally  of    the    United    States,  whether  they 

are  or   are   not  citizens  thereof.     The  government   of 
the   United   States    has    the  right  to  call   upon  all  its 
to  do  military  duty.     11'  those  who  owe  labor 
and  ■    to   Others,    either    by    contract,    by    inden- 

.   by  common  or  statute  law,   or  by   local    u 
could   not    be  lawfully   called  upon  to  have  their  em- 
ments    to  serve    their  country,  no   inconsiderable 
the   able-bodied  men   would    thus  be   ex- 
empt,  and    the    constitution   and   laws    of    the    land 


PU]  I  iT.  21 

providing  for  calling  out  the  army  and  navy  would  be 
Bet  at  nought     But  the  constitution  makes  uo 
exemptions  from  military  duty.     Private  rights  cannot 
3et  up  to  overthrow  the  claims  of  the  country  to 
the  services  of  •  >ne  of  its  subje< 

allegiance. 

How  far  the  United  \  if    under  obligation 

compensate  pare  apprentices,  or  i 

of  slaves,  for  the  loss  of  service  and  labor  of  those 
subjects  who  are  enlisted  in  the  army  and  navy,  has 
not  been  yet  decided.*  The  constitution  recognizes 
slave-  as  ^persons  held  to  labor  or  service"  So  also  are 
apprentices  and  minor  children  "persons  held  to  ! 
and  service."  And.  whatever  other  claims  ma 
up,  by  the  laws  of  either  of  the  slav<  ,  to  any 

."  tlif  constil  ill  ion   i  only  the 

claim  of  individuals  to  the  labor  and  servia  of  other  in- 
dividuals. It  seems  difficult,  therefore,  to  state  any 
sound  principle  which  should  require  compensation  in 
one  case  and  not  in  the  other. 


WILL  SLAVEHOLDEE  [TLED  TO  [NDEMNH  V  I!   'I  HI. m  .-  I 

ABE    USED   FOB  MIUTARV    PDEPO 

It  is  by  no  means  improbable,  that, in  the  ncy 

which   we  are   fast  approaching,    the  right    and   i 
of  the  country  to  call    upon  all  its  loyal  subjects  to 
in  its  military  defence  will  be  deemed  paramount  to  the 
claims  of  any  'private person  upon  such  subjects^  and  that  the 

*  If  an  apprentice  enlist  in  the  army,  the   courts  will   not,  upon  a  h 
corpus,  .'    ued  at  the  relation  of  the  master,  remand  the  apprentico  to  bis 
custody,  if  he  be  unwilling  to   return,  but  will  leave  the* master  to  his  suit 

r,  who,  by  Stat.  16  Mar.  1802,  was  fi 
without  the  ma?-.' -       -  (  aiUh  v.  Bdtrimon,  \  B.  &  R, 

Commonwealth  v.  Han 


•_» j  THE    i  mti. i'    STAT]  3. 

of  certain  citizens,  like  the  loss 

of  life  and  property,  which  always  attends  a  Btate  of 

must  be  borne  by  those  upon  whom  the  misfortune 

happens  to  fall.     It  may  become  one  of  the  great  polifc 

questions  hereafter,  whether,  if  slavery  should 

civil  ;ut  in  time  of  peace,  or  by  treaty  in  time  of  war, 

be  wholly  or  partly  abolished,  for,  nefit,  or  pub- 

.■■\\  abolishment  is  <///  appropriation  of  private 

for  public  use,  within  the  meaning  of the  constitution. 

CNDEMN]  CI     l"    MOBMONS. 

The  question  has  uot  yet  arisen  in  the  courts  of  the 

acl  of  Congress,  which, 
under  the  form  of  a  statute  against  polygamy  abolishes 
aonism,  a  domestic  institution,  sustained  like  slavery 
only  by  local  law,issuch  an  appropriation  of  the  claims 
of  Mormons  to  the  labor  and  service  of  their  wives  as 
requires  just  compensation  under  the  constitution?  A 
decision  of  this  question  may  throw  some  light  on  the 
point  now  under  consideration. 

EFFECT    OF    NATURALIZATION    AND    MILITIA    LAWS    ON    THE    QUK3- 
TION   ok   INDEMNITY  TO    SLAVE-MAST] 

A  further   question  may  arise  as  to  the  application 

of  the  "compensation"  clause  above  referred  to.     Con- 

-  has  the  power  to  pass  naturalization  laws, by  Art. 

This  [tower  has  never  been  doubted.     The 

only  question  is,  whether  this  power  is  not  exclusive.* 

-  may  thus  give  the  privileges  of  citizenship  to 

:    r.  8.  v.  VUlato,  2  Ball.  372; 
Smith  v.  Turner,  7  ib.  556  ;  Go! Jen  v.  Prince, 
■■',  W.  C.  (  ,314. 


PUBLIC    USE    OF    PRIVATE    PROPERTY.  23 

any  persons  whatsoever,  black  or  white.  Colored  men, 
having  been  citizens  in  some  of  the  States  ever  since  they 
were  founded,  having  acted  as  citizens  prior  to  1788  in 
various  civil  and  military  capacities,  are  therefore  citi- 
zens of  the  United  States* 

Under  the  present  laws  of  the  United  States,  accord- 
ing to  the  opinion  of  the  attorney-general  of  Massa- 
chusetts, colored  men  are  equally  with  white  men  required  to 
be  enrolled  in  the  militia  of  the  United  States,^  although 
such  was  not  the  case  under  the  previous  acts  of  1792 
and  1795.  "The  general  government  has  authority  to 
determine  who  shall  and  who  may  not  compose  the 
militia  of  the  United  States  ;  and  having  so  determined, 
the  state  government  has  no  legal  authority  to  prescribe 
a  different  enrolment. J  If,  therefore,  Congress  exercise 
either  of  these  undoubted  powers  to  grant  citizenship  to 
all  colored  persons  residing  or  coming  within  either 
of  the  States,  or  to  pass  an  act  requiring  the  enrolment 
of  all  able-bodied  persons  within  a  prescribed  age, 
whether  owing  labor  and  service  or  not,§  [is part  of 
the  militia  of  the  United  States,  and  thereby  giving  to  all, 
as  they  become  soldiers  or  seamen,  their  freedom  from 
obligations  of  labor  and  service,  except  military  labor 
and  service,  then  the  question  would  arise,  whether 
government,  by  calling  its  own  subjects  and  citizens 
into  the  military  service  of  the  country,  in  case  of  over- 
whelming necessity,  could  be  required  by  the  constitu- 
tion to  recognize  the  private  relations  in  which  the 
soldier  might  stand,  by  local  laws,  to  persons  setting  up 

*  See  case  of  Bred  Scott;  which  in  no  part  denies  that  if  colored  men 
were  citizens  of  either  of  the  states  which  adopted  the  constitution,  they 
were  citizens  of  the  United  States. 

+  See  Stat.  U.  S.  July  17,  1862.  %  8  Gray's  R.  615. 

§  See  Act  approved  February  24,  18G4. 


[ON    OJ      nil'    I  MITI'    ST\ 

claim-  against  him  1     [f  white  subjects  or  citizens,  owe 
!■   and   Bervice,  even   bv   formal    indentures,   such 
obligations  afford  no  valid  excuse  against  the  requisition 
rnment  to  have  them  drafted  into  tic  militia  to 
Berve  the  counl  ry.  The  government  dors  qoI  compensate 
those  who  claim  indemnity  for  the  loss  of  such  "  Labor 
and  Bervice."     Whether  the  color  of  the  debtor,  or  the 
■  of  time  during  which  the  obligation  (to  Labor  and 
has  to  run,  or  the  evidenct  by  which  the  existence 
of  the  obligation  is  proved,  can  make  an  essential  differ- 
between  the  different  kinds  of  labor  and  service, 
remains   to   be  seen.     The  question    is,   whether  the 
soldier  or  seaman,  serving  his  country  in  arms,  can  ho 
deemed  privatt  property,a&  recognized  in  the  constitution 
of  the  United  States  ? 

ilir.   WAS  POWEB   OF   SEIZURE    SUPERSEDE    THE  CIVIL   POWEB 
OF   CONGRESS    10   AJPPBOPBIATE    PRIVATE    PROPERTY    TO   PUBLIC 

That  the  property  of  any  citizen  may,  under  certain 
circumstances,  be  seized  in  time  of  war.  by  military  officers, 
for  public  purposes,  is  not  questioned,  just  compensation 
!.  or  provided  for;  but  the  question  has 
.  asked,  whether  this  power  does  not  supersede 
the  right  of  Congress,  in  war,  to  pass  laws  to  take  away 
what  martial  law  leaves  unappropriated? 

This  inquiry  is  conclusively  answered  by  reference  to 
mendment  of  the  constitution,  above  cited,  which 
admits  the  existence  of  that  power  in  Congress;*  but  in 
addition  to  this,  there  are  other  clauses  which  devolve 
and  duties  on  the  legislature,  giving  them  a 
large  and  important  share  in  instituting,  organizing, 
carrying  on,  regulating,  and  ending  war;  and  these 
duties  could  not,  under  all  circumstances,  be  discharged 

lendments,  Art.  V.  lasl  clause. 


PUBLIC    USE    OF   PRIVATE    PROPERTY. 


9£ 


in  war,  without  exercising  the  right  to  take  for  public 
use  the  property  of  the  subject.  It  would  seem  strange 
if  private  property  could  not  be  so  taken,  while  it  is 
undeniable  that  in  war  the  government  can  call  into 
the  military  service  of  the  country  every  able-bodied 
citizen,  and  tax  his  property  to  any  extent. 

REFERENCES   AS  TO  THE  CONSTITUTION,    SHOWING   THE   WAR    POW- 
ERS OF  CONGRESS. 

The  powers  of  the  legislative  department  in  relation 
to  war  are  contained  chiefly  in  the  following  sections 
in  the  constitution  :  — 

Art.  L,  Sect.  8,  CI.  11.  Congress  may  institute  war  by 
declaring  it  against  an  enemy.  The  President  alone 
cannot  do  so.  Also,  Congress  may  make  laws  concern- 
ing captures  on  land,  as  well  as  on  water. 

Art.  I.,  Sect.  8,  CI.  12.  Congress  may  raise  and 
support  armies :  and  provide  and  maintain  a  navy. 

Art.  I.,  Sect.  8,  CI.  14.  Congress  may  make  laws 
for  the  government  of  land  and  naval  forces. 

Art.  I.,  Sect.  8,  CI.  15.  Congress  may  provide  for 
calling  forth  the  militia  to  execute  the  laws  of  the  Union, 
suppress  insurrection,  and  repel  invasion. 

Art.  I.,  Sect.  8,  CI.  16 :  And  may  provide  for  or- 
ganizing, arming,  and  disciplining  the  militia,  and  for 
governing  such  part  of  them  as  may  be  employed  in  the 
service  of  the  United  States. 

The  preamble  to  the  constitution  declares  the  objects 
for  which  it  was  framed  to  be  these  :  "  to  form  a  more 
perfect  Union ;  establish  justice ;  insure  domestic  tran- 
quillity ;  provide  for  the  common  defence ;  promote  the 
general  welfare,  and  secure  the  blessings  of  liberty  to 
ourselves  and  our  posterity."  In  Art.  I.,  Sect.  8,  CI.  1, 
4 


,  :.i     UNITED    BTATE& 

given  to  Congress   is  tola}  and  collect 

-.  imposts,  and    excises,   to  pay  the  debts, 

provide    for    the  ■  ral  weir 

Ami    in    the  same  article  (  the 

power  is  given  to  <  longress 

Mch  shall  be  tn  a  ssary  and  />/■<>/»  r  for  carry' 

■L'  loing  and  all  other  powers  vested  by 

'  the  United  States,  or  in  any 
■'■  /■" 

SLAVE    PI  SUBJECT    TO    THE    SAME    LIABILITY    as    OTHEB 

PBOPEBTJ     TO    BE     IPPBOPBIATED    FOB    WAB    PUBPOSES. 

If  the  public  welfan  and  common  defence,  in  time  of  war, 
require  thai  the  claims  of  masters  over  their  appren- 
-  or  slaves  should  be  cancelled  or  abrogated,  against 
their  consent,  and  if  a  general  law  carrying  into  execu- 
tion  such  abrogation,  is,  in  the  judgment  of  Congress,"a 
necessary  and  proper  measure  for  accomplishing  that 

■  can  l>c  no  question  of  the  constitutional 
power  and  right  of  Congress  to  pass  such  laws.  The 
only  doubt  is  in  relation  to  the  right  to  compensation. 
If  it  should  be  said  that  the  release  of  slaves  from  their 
servitude  would  be  tantamount  to  impairing  or  destroy- 

ition  of  con  tracts,  it  may  be  said,  thai  though 
states  have  no  right  to  pass  laws  impairing  the  obli- 
gation of  contracts,  Congress  is  at  liberty  to  pass  such 
laws.  It  will  be  readily  perceived  that  the  right  to 
ami  cancel  the  obligations  of  apprentices 
and  slaves  does  not  resl  solely  upon  the  power  of 
1  -  to  appropriate  private  property  to  public  use; 

but  it  maybe  founded  upon  their  power  and  obligation 
to  accomplish  one  of  the  chief  objects  for  which  the 
□  was  formed,  viz.,  to  provide  for  the  common  <hfcnce 
and  general  welfan  of  the  United  States- 


PUBLIC    USE    OF   PRIVATE   PROPERTY.  27 

IMPORTANCE   AND  DANGER  OF  THIS   POWER. 

The  powers  conveyed  in  this  18th  clause  of  Art.  L, 
Sect.  8,  are  of  vast  importance  and  extent.  It  may  be 
said  that  they  are,  in  one  sense,  unlimited  and  discretion- 
ary. They  are  more  than  imperial.  But  it  was  in- 
tended by  the  framers  of  the  constitution,  or,  what  is 
of  more  importance,  by  the  people  who  made  and  adopt- 
ed it,  that  the  powers  of  government  in  dealing  with 
civil  rights  in  time  of  peace,  should  be  defined  and  lim- 
ited ;  but  the  powers  "  to  provide  for  the  general  welfare 
and  the  common  defence"  in  time  of  war,  should  be  un- 
limited. It  is  true  that  such  powers  may  be  temporarily 
abused ;  but  the  remedy  is  always  in  the  hands  of  the 
people,  who  can  unmake  laws  and  select  new  repre- 
sentatives and  senators. 

POWERS  OF  THE    PRESIDENT  NOT  IN  CONFLICT  WITn  THOSE  OF 
CONGRESS. 

It  is  not  necessary  here  to  define  the  extent  to  which 
congressional  legislation  may  justly  control  and  regu- 
late the  conduct  'of  the  army  and  navy  in  service  ;  or 
where  falls  the  dividing  line  between  civil  and  martial 
law.  But  the  power  of  Congress  to  pass  laws  on  the 
subjects  expressly  placed  in  its  charge  by  the  terms  of 
the  constitution  cannot  betaken  away  from  it,  by  rea- 
son of  the  fact  that  the  President,  as  commander-in-chief 
of  the  army  and  navy,  also  has  powers,  equally  consti- 
tutional, to  act  upon  the  same  subject-matters.  It  does 
not  follow  that  because  Congress  has  power  to  abro- 
gate the  claims  of  Mormons  or  slaveholders,  the  Presi- 
dent, as  commander,  may  not  also  do  the  same  thing. 

These  powers  are  not  inconsistent,  or  conflicting. 
Congress  may  pass  laws   concerning  captures  on  land 


nil  PION    OP    nil.    I  \in  D   BTAT]  9. 

and  on  the  water,  [f slaves  are  capix  red, and  are  treated 
a-   "captured    property,"    I  should   determine 

what  is  to  be  done  with  them;*  and  it  will  be  the 
;'  luty  to  Bee  that  th  •  as  well  as  other  laws 

of  the  United  States  are  executed. 

HAS     POWKB    i  mt.i:    THE    CONSTITUTION    TO    ABOLISH 
8LAVEBY. 

Whenever,  in  the  judgmenl  of  Congress,  the  con  mum 
defence  and  public  welfare,  in  time  of  war,  require  the 
removal  of  the  condition  of  slavery,  it  is  within  the 

•  of  their  constitutional   authority  to  pass  laws  for 
thai  purpos 

[f  BUch  laws  are  deemed  to  take  private  prop- 
erty for  public  use,  or  to  destroy  private  property 
for  public  benefit,  as  has  been  shown,  that  may  be  done 
under  the  constitution,  by  providing  just  compensation  ; 
otherwise,  no  compensation  can  be  required.     It  has 

i  so  long  the  habit  of  those  who  engage  in  public 

life  to  disclaim  any  intention  to  interfere  with  slavery 

in  the  State-,  thai  they  have  of  late  become  accustomed 

to  deny  the  rigid  of  Cultures*  to  do  so.     But  the  constitu- 

tins  a"  clause  or  sentence  prohibiting  Ike  exercise  by 

of  ///'■  pit  nary  powi  r  of  abrogating  involuntary  scrri- 

The  only  prohibition  contained  in  that  instrument 

ing  to  persons  held  to  labor  and  service,  is  in  Art.  IV., 

h  provides  that. -No  person  held  to  labor  and  service 
in  oi  .  under  the  laws  thereof  escaping  into  another, 

shall,  in  consequence  of  any  law  or  regulation  "therein" 
be  discharged  from  such  service  or  labor;  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such  ser- 
vice or  labor  may  he  due."     Thus,  if  a  slave  or  appren- 

•  C  institution,  Art.  I.,  Sect.  8,  CI.  11. 


PUBLIC   USE   OF   PRIVATE    PROPERTY.  29 

tice,  owing  service  to  his  employer  in  Maryland,  escapes 
to  New  York,  the  legislature  of  New  York  cannot,  by 
any  law  or  regulation,  legally  discharge  such  apprentice 
or  slave  from  his  liability  to  his  employer.  This  restric- 
tion is,  in  express  terms,  applicable  only  to  State  legislatures, 
and  not  to  Congress. 

Many  powers  given  to  Congress  are  denied  to  the 
States ;  and  there  are  obvious  reasons  why  the  supreme 
government  alone  should  exercise  so  important  a  right. 
That  a  power  is  withdrawn  from  the  States,  indicates, 
by  fair  implication,  that  it  belongs  to  the  United  States, 
unless  expressly  prohibited,  if  it  is  embraced  within 
the  scope  of  powers  necessary  to  the  safety  and  pres- 
ervation of  the  government,  in  peace  or  in  civil  war. 

It  will  be  remarked  that  the  provision  as  to  slaves 
in  the  constitution  relates  only  to  fugitives  from  labor 
escaping  from  one  state  into  another;  not  to  the  status 
or  condition  of  slaves  in  any  of  the  states  where  they 
are  held,  while  another  clause  in  the  constitution 
relates  to  fugitives  from  justice.*  Neither  clause  has 
any  application  to  citizens  or  persons  who  are  not 
fugitives.  And  it  would  be  a  singular  species  of  rea- 
soning to  conclude  that,  because  the  constitution  pre- 
scribed certain  rules  of  conduct  towards  persons  escaping 
from  one  State  into  another,  therefore  there  is  no  power 
to  make  rules  relating  to  other  persons  ivho  do  not  escape 
from  one  Stale  into  another.  If  Congress  were  expressly 
empowered  to  pass  laws  relating  to  persons  zvhen 
escaping  from  justice  or  labor  by  fleeing  from  their 
own  States,  it  would  be  absurd  to  infer  that  there 
could  be  no  power  to  pass  laws  relating  to  these 
same  persons   when    staying  at    home.     The   govern* 

*  Constitution,  Art.  IV.  Sect.  2. 


i  in  HON    OP   THE    I  Mil  D   8T  v  PES. 

•  max  pass  laws  requiring  the  return  of  fugitives: 
niav    pass   other   laws    punishing   their   crimes, 
elieving  them  from  penalty.     The  power  to  do  the 
one  by  n<>  means  n<  the  power  to  do  the  other. 

1  ress  should  discharge  the  obligations  of  slaves 
to  render  labor  and  service,  by  passing  a  law  to  thai 
ich  law  would  supersede  and  render  void  all 
rules,  regulations,  customs,  or  laws  of  either  Stair  to  the 
trary,  for  the  constitution,  treaties,  and  laws  of  the 
United  States  are  the  supreme  law  of  the  land.  If 
slaves  were  released  by  :lt-t  of  Con  ir  by  the  act 

of  their  masters,  there  would  be  no  person  held  to  labor 
-lave  by  the  laws  of  any  Slide,  and  therefore  there 
would  be  no  person  to  whom  the  clause  in  the  consti- 
tution restraining  Mate  legislation  could  apply.  This 
clause, relating  to  fugitive  slaves,  has  often  been  misun- 
derstood, as  it  has  been  supposed  to  limit  the  power  of 
.  while   in  fact  it  applies  in  plain  and  <  terms 

t controlling  or  limiting  their  powers,  hut 
having  no  application  to  the  general  government.     If 
the  Cramers  of  the  constitution  intended  to  take  from 
Congress  the  power  of  passing  laws  relating  to  slaves 
in  the  States  or  elsewhere,  they  would  have  drafted  a 
clause  to  that  effect.     They  did  insert  in  that  instru- 
ment a  proviso  that  Congress  should  pass  no  law  pro 
hibiting  tin'  "importation  of  such  persons  as  any  of 
should    think    proper  to  admit"  (meaning 
slaves)    "prior  to    L808."  *     And    if  they  did    not  de- 
that   tin-  legislature  should  exercise  control  over 
the  Bubject  of  domestic  slavery,  whenever  it    should 
me  such  an  aspect  as  to  involve  national  interests, 
the   introduction   of  the    proviso   relating   to  the  slave 

'   'institution,  Art.  I.  Sect.  9. 


PUBLIC    USE    OF   PRIVATE   PROPERTY.  31 

trade,  and  of  several  other  clauses  in  the  plan  of  gov- 
ernment, makes  the  omission  of  any  prohibition  of 
legislation  on  shivery  unaccountable. 

CONCLUSION. 

Thus  it  has  been  shown  that  the  government  have 
the  right  to  appropriate  to  public  use  private  property  of 
every  description ;  that  "public  use"  may  require  the 
employment  or  the  destruction  of  such  property ;  that 
if  the  "  right  to  the  labor  and  service  of  others,"  as 
slaves,  be  recognized  in  the  broadest  sense  as  "prop- 
erty," there  is  nothing  in  the  constitution  which 
deprives  Congress  of  the  power  to  appropriate  "  that 
description  of  property  "  to  public  use,  by  terminating 
slavery,  as  to  all  persons  now  held  in  servitude,  when- 
ever laws  to  that  effect  are  required  by  "  the  public 
welfare  and  the  common  defence "  in  time  of  war ; 
that  this  power  is  left  to  the  discretion  of  Congress, 
who  are  the  sole  and  exclusive  judges  as  to  the  occa- 
sions when  it  shall  be  exercised,  and  from  whose  judg- 
ment there  is  no  appeal.  The  right  to  "just  compen- 
sation "  for  private  property  so  taken,  depends  upon 
the  circumstances  under  which  it  is  taken,  and  the 
loyalty  and  other  legal  conditions  of  the  claimant. 


Note.  —  As  to  the  use  of  discretionary  powers  in  other  departments,  see 
Martin  v.  Mott,  12  Wheat.  29-31 ;  Luther  v.  Borden,  7  How.  44,  45. 


INTRODUCTION    TO    CHAPTER   II. 


The  Constitution,  Art.  I,  Sect.  8,  clause  18,  gives  Congress  power  '  to 
make  all  laws  which  shall  be  necessary  and  proper  for  carrying  into  execu- 
tion the  foregoing  powers,  and  all  other  powers  vestad  by  this  Constitution 
in  the  Government  of  the  United  States,  or  in  any  Department  or  officer 
thereof." 

Art.  II,  Sect.  2,  clause  1,  provides  that  "  the  President  shall  be  Com- 
mander-in-chief of  the  Army  and  Navy  of  the  United  States,  and  of  the 
Militia  of  the  several  States,  when  called  into  the  actual  service  of  the 
United  States." 

Art.  I,  Sect.  8,  declares  that  "  Congress  shall  have  power  to  provide  for 
calling  forth  the  Militia  to  execute  the  laws  of  the  Union,  suppress  insur- 
rections, and  repel  invasions." 

As  the  President  is,  within  the  sense  of  Art.  I.,  Sect.  8,  clause  18,  "  an 
officer  of  government ; "  and  by  virtue  of  Art.  II,  Sect.  2,  clause  1,  he  is 
Commander-in-chief  of  the  Army  and  Navy ;  and  as,  by  virtue  of  Art.  II., 
Sect.  2,  clause  1,  and  Art.  I.,  Sect.  8,  the  power  is  vested  in  him  as  "  an 
officer  of  the  government "  to  suppress  rebellion,  repel  invasion,  and  to 
maintain  the  Constitution  by  force  of  arms,  in  time  of  war,  and  for  that 
purpose  to  overthrow,  conquer,  and  subdue  the  enemy  of  his  country,  so 
completely  as  to  "  insure  domestic  tranquillity,"  —  it  follows  by  Art.  I., 
Sect.  8,  clause  18,  that  Congress  may,  in  time  of  war,  pass  all  laws  which 
shall  be  necessary  and  proper  to  enable  the  President  to  carry  into  exe- 
cution "  all  his  military  powers. 

It  is  his  duty  to  break  down  the  enemy,  and  to  deprive  them  of  their 
means  of  maintaining  war :  Congress  is  therefore  bound  to  pass  such  laws 
as  will  aid  him  in  accomplishing  that  object. 

If  it  has  power  to  make  laws  for  carrying  on  the  government  in  time  of 
peace,  it  has  the  power  and  duty  to  make  laws  to  preserve  it  from  destruc- 
tion in  time  of  war. 


(33) 


NSTITUTION    OF   THE    I  Mill'    STATES. 


CHAP  T  E  R    II. 
w.\i;    V<  IWERS  OF  C<  INGRI  8S.« 

< '  NGREsa  has  power  to  frame  statutes  not  only  for  the 
punishment  of  crimes,  bul  also  for  the  purpose  of  aid- 
ing the  President,  as  commander-in-chief  of  the  army 
and  navy,  in  suppressing  rebellion,  and  in  the  final  and 
permanent  conquest  of  a  public  enemy.  ••  It  may  pass 
such  laws  as  it  may  deem  necessary,"  Bays  Chief  Justice 
Marshall,  "to  cany  into  execution  the  great  powers 
granted  by  the  constitution;"  and  ^necessary  means, 
in  the  sense  of  the  constitution,  does  not  import  an 
lute  physical  necessity,  so  strong  that  one  thing 
cannot  exist  without  the  other.  It  stands  for  any 
means  calculated   to  produce  the  cud." 

RULES    OF  INTEBPBETA  I  l<>\. 

The  constitution  provides  that  Congress  shall  have 
power  to  pass  "all  laws  necessary  and  proper"  for  car- 
rying  into  execution  all  the  powers  granted  to  the  gov- 
ernment of  the  United  States,  or  any  department  or 
officer  thereof.  The  word  "necessary,"  as  used,  is  not 
limited  by  the  additional  word  "  proper,"  but  enlarged 
thereby. 

"  If  the  word  y  were  used  in   the  strict,  rigorous  Bense,  it 

would  '  ttraordinary  departure  from   the  usual  course  of  the 

human  mind,  as  exhibited  in  solemn  instruments,  to  ;nl<l  another  word, 
the  only  possible  effect  of  which  is  to  qualify  thai  gtricl  and  rigorous 
meaning,  an>l  to  present  clearly  1 1 1 « -  idea  of  a  choice  of  means  in  the 
of  legislation.     If  no  moans  are  to  be  resorted  to  but  such  as 

'   F  ea  to  the  clauses  of  the  Constitution  containing  the  war 

powers  of  Congress,  see  ante,  pp.  27, 


WAR   POWERS    OF    CONGRESS.  35 

are  indispensably  necessary,  there  can  be  neither  sense  nor  utility  in 
adding  the  word  'proper,'  for  the  indispensable  necessity  would  shut 
out  from  view  all  consideration  of  the  propriety  of  the  means."  * 

Alexander  Hamilton  says, — 

"The  authorities  essential  to  the  care  of  the  common  defence  are 
these  :  To  raise  armies  ;  to  build  and  equip  fleets  ;  to  prescribe  rules  for 
the  government  of  both  ;  to  direct  their  operations  ;  to  provide  for  their 
support.  These  powers  ought  to  exist  without  limitation,  because 
it  is  impossible  to  foresee  or  to  define  the  extent  and  variety  of  national 
exigencies,  and  the  correspondent  extent  and  variety  of  the  means 
necessary  to  satisfy  them.  The  circumstances  which  endanger  the 
safety  of  nations  are  infinite ;  and  for  this  reason  no  constitutional 
shackles  can  wisely  be  imposed  on  the  power  to  which  the  care  of  it 
is  committed.  .  .  .  This  power  ought  to  be  under  the  direction  of  the 
same  councils  which  are  appointed  to  preside  over  the  common  defence. 
...  It  must  be  admitted,  as  a  necessary  consequence,  that  there  can 
be  no  limitation  of  that  authority  which  is  to  provide  for  the  defence 
and  protection  of  the  community  in  any  matter  essential  to  its  efficacy 
—  that  is,  in  any  matter  essential  to  the  formation,  direction,  or  sup- 
port of  the  NATIONAL  FORCES." 

This  statement,  Hamilton  says, — 

"  Rests  upon  two  axioms,  simple  as  they  are  universal :  the  means 
ought  to  be  proportioned  to  the  end;  the  persons  from  whose  agency 
the  attainment  of  the  end  is  expected,  ought  to  possess  the  means  by 
which  it  is  to  be  attained."  f 

The  doctrine  of  the  Supreme  Court  of  the  United 
States,  announced  by  Chief  Justice  Marshall,  and  ap- 
proved by  Daniel  Webster,  Chancellor  Kent,  and  Judge 
Story,  is  thus  stated  :  — 

"  The  government  of  the  United  States  is  one  of  enumerated  pow- 
ers, and  it  can  exercise  only  the  powers  granted  to  it ;  but  though 
limited  in  its  powers,  it  is  supreme  within  its  sphere  of  action.  It  is 
the  government  of  the  people  of  the  United  States,  and  emanated 
from  them.  Its  powers  were  delegated  by  all,  and  it  represents  all, 
and  acts  for  all. 

••  There  is  nothing  in  the  constitution  which  excludes  incidental  or 

*  3  Story's  Commentaries,  Sec.  122.      t  Federalist,  No.  23,  pp.  do,  96. 


mi:   i  Mi!i«  st\ 

l  '  ■    \  ■  of  I  ive  nothing  to  the 

I  -  it  wli.ii  was  express!)  granted;  bul  the  new  constitu- 

dropped  tli  ■  !  lefl  the  question  whether  a  par- 

[  to  depend  on  a  fair  construction  of  the  whole 

:  •  ■.     \ nstitution  can  contain  an  accurate  detail  of  ;ill  the 

l  all  ili<'  I     w hich  they  might  be 

It  would   render  it  too  prolix.     It-  nature 
■  at  outlines  Bhould  be  marked,  and  it-  impor- 
nnd  all  the  minor  ingredients  left   to  be  de- 
i  the  nature  of  those  objects.     The  Bword  and  the  purse, 
all  the  external  relations,  and  m>  inconsiderable  portion  of  the  industry 
intrusted  to  the  general  government;  and  a  gov- 
ernment intrusted  with  such  ample  powers,  on  the  due  execution  of 
which  the  happiness  and  prosperity  of  the  people  vitally  depended, 
must  also  1"-  intrusted  with  ample  means  of  their  execution.     Unless 

rords  imperiously  require  it.  we  oughl  nol  to  adopt  a istruction 

which  would  impute  to  the  framersof  the  constitution,  when  granting 

great  powers  for  the  public  good,  the  intention  of  impeding  their  exer- 

thholding  a  choice  of  means.     The  powers  given   to  the 

iment  imply  the  ordinary  means  of  execution  ;  and  the  govern- 

.  in  all  sound  reason  ami  lair  interpretation,  must  have  the  choice 

of  tin-  means  which  tt  deems  the  most  convenient  ami  appropriate  to 

the  execution  of  the  power.     The  constitution  has  not  hit  the  right 

-  to  employ  the  nee. — ary  mean-  for  the  execution  of  its 

ning.     An.  I.  Sect.  8,  of   the    constitution, 

jsly  confers  mi  Congress  the  power 'to  make  all  law-  that  may 

■  ■--ary  and  proper  to  carry  into  execution  the  foregoing  powers.' 

3S  may  employ  such  means  and  pa--  such  laws  a-  it  may 

-ary  to  carry  into  execution  great  powers  granted  by  the 

constitution;  and  necessary  mean-.  «i   the  sense  of  the  constitution, 

import  an  absolute  physical  necessity,  so  strong  that  one 

i-t  without  the  other.     It  stands  for  any  means  calcu- 

e  the  end.     The  word  necessary  admits  of  all  degress 

tparison.     A  thing  may  he  necessary,  or   very  necessary,  or 

absolutely  or  indispensably  necessary.     The  word  is  used  in  various 

construction  the  subject,  the  context,  the  intention, 

are  all  to  he  taken  into  view.     The  powers  of  the  government   were 

given  for  the  welfare  of  the   nation.     They  were  intended  to  endure 

•1  to  be  adapted  to  the  various  ernes  in  human 

To  prescribe  the  specific  means  by  which  government  shouM 


WAR   POWERS    OF    CONGRESS.  37 

in  all  future  time  execute  its  power,  and  to  confine  the  choice  of  means 
to  such  narrow  limits  as  should  not  leave  it  in  the  power  of  Congress 
to  adopt  any  which  might  be  appropriate  and  conducive  to  the  end, 
would  be  most  unwise  and  pernicious,  because  it  would  be  an  attempt 
to  provide,  by  immutable  rules,  for  exigencies  which,  if  foreseen  at 
all.  must  have  been  foreseen  dimly,  and  would  deprive  the  legislature 
of  the  capacity  to  avail  itself  of  experience,  or  to  exercise  its  reason, 
and  accommodate  its  legislation  to  circumstances.  If  the  end  be  legit- 
imate, and  within  the  scope  of  the  constitution,  all  means  which  are 
appropriate,  and  plainly  adapted  to  this  end,  and  which  are  not  pro- 
hibited by  the  constitution,  are  lawful."  * 

Guided  by  these  principles  of  interpretation,  it  is 
obvious  that  if  the  confiscation  of  property,  or  the  liber- 
ation of  slaves  of  rebels,  be  "  plainly  adapted  to  the  end," 
—  that  is,  to  the  suppression  of  rebellion,  —  it  is  within 
the  power  of  Congress  to  pass  laws  for  those  purposes. 
Whether  they  are  adapted  to  produce  that  result  is  for 
the  legislature  alone  to  decide.  But,  in  considering  the 
war  powers  conferred  upon  that  department  of  govern- 
ment, a  broad  distinction  is  to  be  observed  between 
confiscation  or  emancipation  laws,  passed  in  time  of 
peace,  for  the  punishment  of  crime,  and  similar  laws, 
passed  in  time  of  war,  to  aid  the  President  in  suppress- 
ing rebellion,  in  carrying  on  a  civil  war,  and  in  securing 
"  the  public  welfare "  and  maintaining  the  "  common 
defence  "  of  the  country.  Congress  may  pass  such  laws 
in  peace  or  in  war  as  are  within  the  general  powers  con- 
ferred on  it,  unless  they  fall  within  some  express  pro- 
hibition of  the  constitution.  If  confiscation  or  emanci- 
pation laws  are  enacted  under  the  war  powers  of  Con- 
gress, we  must  determine,  in  order  to  test  their  validity, 
whether,  in  suppressing  a  rebellion  of  colossal  pro- 
portions, the  United  States  are,  within  the  meaning  of 

*  On  the  interpretation  of  constitutional  power,  see  1  Kent's  Com.  351t 
352;  McCulloch  v.  The  State  of  Maryland,  4  Wheat.  It.  413-420. 


up     l  Mil  D    BTATES. 

onstitiition,  at  war  with  ita  own  citizens?  whether 
confiscation  and  emancipation  are  sanctioned  as  belli- 

q1  rights  by  the  law  and  usage  of  civilized  cations? 
and  whether  our  government  has  lull  belligerent  rights 
ebellious  subjects  '.' 

\i:i      1  Ml     I  \I  Mb   -  I  \  I  I ',$    \  I    \V  LB 

War  may  originate  in  either  of  several  ways.  The 
of  .1  European  nation  may  attack  an  American 
i  a  remote  Bea.  Hostilities  then  commence 
without  any  invasion  of  the  soil  of  America,  or  any 
insurrection  of  its  inhabitants.  A  foreign  power  may 
Bend  troops  into  our  territory  with  hostile  intent,  and 
without  declaration  of  war  j  yet  war  would  exist  solely 
by  this  acl   of  invasion.     Congress,  on  one   occasion, 

solution  that  "war  existed  by  the  act  of 
Mexico;"  but  no  declaration  of  war  had  been  made 
ither  belligerent  Civil  war  may  commence  either 
as  a  general  armed  insurrection  of  slaves,  a  servile 
war;  or  as  an  insurrection  of  their  masters,  a  re- 
hellion;  or  as  an  attempt,  by  a  considerable  portion 
of  the  jects,  to  overthrow  their  government  — 
which  attempt,  if  successful,  is  termed  a  revolution. 
Civil    war.    within    the    meaning   of  the    constitution, 

whenever  any  combination  of  citizens  is 
formed  to  resisl  generally  the  execution  of  any  one  or 
of  all  the  laws  of  the  United  States,  if  accompanied  with 

i  give  that  resistance  effect 

OP    WAR    NOT     NECESSARY    ON     THE    PAET    OF    THE 
GOV]  I"   GIVE    IT    It  l.l.   BELLIGERENT    POWERS. 

A  Btate  of  war  may  exist, arising  in  either  of  the  modes 

above  mentioned,  without  a  declaration  of  war  by  either 

of  the  hostile    parties.     Congress  has  the  sole  power, 

the  constitution,  to  make  that  declaration,  and 


WAR   POWERS    OF    CONGRESS.  39 

to  sanction  or  authorize  the  commencement  of  offensive 
war.  If  the  United  States  commence  hostilities  against 
a  foreign  nation,  such  commencement  is  by  proclamation, 
which  is  equivalent  to  a  declaration  of  war.  But  this  is 
quite  a  different  case  from  a  defensive  or  a  civil  war.  The 
constitution  establishes  the  mode  in  which  this  govern- 
ment shall  commence  wars,  and  what  authority  shall  ordain, 
and  what  declarations  shall  precede,  any  act  of  hostility ; 
but  it  has  no  power  to  prescribe  the  manner  in  which 
others  should  begin  war  against  us.  Hence  it  follows, 
that  when  war  is  commenced  against  this  country,  by 
aliens  or  by  citizens,  no  declaration  of  war  by  the  gov- 
ernment is  necessary.*  The  fact  that  war  is  levied 
against  the  United  States,  makes  it  the  duty  of  the 
President  to  call  out  the  army  or  navy  to  subdue  the 
enemy,  whether  foreign  or  domestic.  The  chief  object 
of  a  declaration  of  war  is  to  give  notice  thereof  to 
neutrals,  in  order  to  fix  their  rights,  and  liabilities  to 
the  hostile  powers,  and  to  give  to  innocent  parties 
reasonable  time  to  withdraw  their  persons  and  property 
from  danger.  If  the  commander-in-chief  could  not 
call  out  his  forces  to  repel  an  invasion  until  Congress 
should  have  made  a  formal  declaration  of  war,  a  foreign 
army  might  march  from  Canada  to  the  Gulf  before 
such  declaration  could  be  made,  if  it  should  com- 
mence the  campaign  while  Congress  was  not  in  ses- 
sion. Before  a  majority  of  its  members  could  be 
convened,  our  navy  might  be  swept  from  the  seas. 
The  constitution,  made  as  it  was  by  men  of  sense, 
never  leaves  the  nation  powerless  for  self-defence. 
That  instrument,  which  gives  the  legislature  authority 
to  declare  war,  whenever  war  is  initialed  by  the  United 
States,  also  makes  it  the  duty  of  the  President,  as  com- 

*  See  opinion  of  the  Supreme  Court  of  theU.  S.  on  this  subject,  pronounced 
since  the  4th  edition  of  this  work  was  published.     Appendix,  p.  111. 


raander-in-chief,  to  i  promptly  and  effectually  in 

:  or,  in  other  words,  to  make  the   United  States  a 
mi.  without   declaration  of  war,  or  any 
(  w  bene\  er   he  is  legally   called 

iellion,  repel  invasion,  or  to  execute 
the  I  linsl  armed  and  forcible  resistance  thereto. 

The  I  bis  duty, Congress  have  theirs;  they 

.  and  in  some  respects  independent.    Noth- 
;■  than  this,  that    when   such  a  state  of  hos- 
tility -  justifies   the   President  in  calling  the 
army  into  actual  service, withoul  the  authority  of  Con- 
-.  no  declaration  of  war  is  requisite, either  in  form  or 
:e,  tor  any  purpose  whatsoever.     Hence  it   fol- 
lows, that  government,  while  engaged  in  suppressing  a 
not  deprived  of  the   rights  of  a  belligerent 
.  by  reason  of  the  Tact  that  no  formal  decla- 
ration of  war   has   been  made  against    them,  as  though 
they  were  an  alien  enemy.  —  nor  by  reason  of  the  cir- 
cumstance that  this  -real  civil  war  originated, so  far  as 
-   to  it.  in  an   effort   to    resist  an  armed 
attack  of  citi/ens  upon  the  soldiers  and  the  forts  of  the 
United  Si  It   must   not  he  forgotten   that  by  the 
law  of  nations  and  by  modern  usage,  no  formal  declaration 
of  war  to  the  enemy  is  made  or  deemed  necessary.*     All 
that  ia  now  requisite  is  for  each  nation  to  make  suita- 
eclarations  or  proclamations  to  its  own   citizens,  to 
enable  them  to  govern  themselves  accordingly.     These 
have  been  made  by  the  President. 

II  \-   GOVERNMENT    FULL   WAB    POWERS    \c\I\-T    REBEL    CITIZENS/ 

S  ime  persons   have    questioned    the    right   of    the 

United    £  i    make   and   carry  on  war  against  citi- 

*   See  1  Kent's  Com.  p.  54. 


WAR    POWERS    OF    CONGRESS.  41 

zens  and  subjects  of  this  country.  Conceding  that  the 
President  may  be  authorized  to  call  into  active  service 
the  navy  and  army  "  to  repel  invasion,  or  suppress 
rebellion,"  they  neither  admit  that  suppressing  rebel- 
lion places  the  country  in  the  attitude  of  making  war 
on  rebels,  nor  that  the  commander-in-chief  has  the  con- 
stitutional right  of  conducting  his  military  operations 
as  he  might  do  if  he  were  actually  at  war  (in  the  ordi- 
nary sense  of  the  term)  against  an  alien  enemy.  Mis- 
apprehension of  the  meaning  of  the  constitution  on 
this  subject  has  led  to  confusion  in  the  views  of  some 
members  of  Congress  during  the  last  session,  and  has  in 
no  small  degree  emasculated  the  efforts  of  the  majority 
in  dealing  with  the  questions  of  emancipation,  confisca- 
tion, and  enemy's  property. 

Some  have  assumed  that  the  United  States  are  not 
at  war  with  rebels,  and  that  they  have  no  authority  to 
exercise  the  rights  of  war  against  them.  They  admit 
that  the  army  has  been  lawfully  called  into  the  field, 
and  may  kill  those  who  oppose  them ;  they  concede 
that  rebels  may  be  taken  captive,  their  gunboats  may 
be  sunk,  and  their  property  may  be  seized ;  that  mar- 
tial law  may  be  declared  in  rebellious  districts,  and  its 
pains  and  penalties  may  be  enforced  ;  that  every  armed 
foe  may  be  swept  out  of  the  country  by  military 
power.  Yet  they  entertain  a  vague  apprehension  that 
something  in  the  constitution  takes  away  from  these 
military  proceedings,  in  suppressing  rebellion  and  in 
resisting  the  attacks  of  the  rebels,  the  quality  and 
character  of  warfare.  All  these  men  in  arms  are  not, 
they  fancy,  "  making  war!'  When  the  citizens  of  Charles- 
ton bombarded  Fort  Sumter,  and  captured  property 
exclusively  owned  by  the  United  States,  it  is  not 
6 


\'2  I       Mil      1  Mill'    Sl'\  ' 

deuied  thai  var "  upon   the  go^  ei  n- 

ment     When   .M  jor  A  i   returned   the  enemy's 

and   attempted  to  defend  the  fori  and  the  guns 
>ture,  ii  ■  thai   tb  y  was  "  waging 

war."     While  other  nations,  as  well  as  our  own,  had 
lorn:  informally  conceded  to  the  rebels  the  char- 

acter and  the  rights  usually  allowed  to  belligerents, — 
thai  is,  to  persons  making  war  on  us,  —  wt .  accordin 
the  constitutional  Bcruple  above  stated,  were  uol  enti- 
tled to  the  rights  of  belligerents  againsl  them.  It 
therefore  becomes  important  to  know  what,  according 
nstitution,  the  meaning  of  the  term  "levying 
war"  really  is  ;  and  as  the  military  forces  of  this  country 
arc  in  actual  Bervice  to  suppress  rebellion,  whether  such 
military  Ben  ice  is  making  war  upon  its  own  citizens  ;  and 
ii"  war  actually  exists,  whether  there  is  any  thing  in  the 
stitution  that  limits  or  controls  the  full  enjoyment 
and  exercise  by  the  government  of  the  rights  of  a  bel- 
ligerent against  the  belligerent  enemy? 

\<,     REBELLION"     BY     ARMS     MAKING    W\K    ON    THE 
llll.   UNITED     :  OH    1  HE    SENSE   OF  THE 

To  -  repel  invasion"  by  arms,  all  admit,  is  entering 

jive  war  against  the   invader.     War  exists 

:   and  whenever  the  army  or  navy  is  in  active 

as!  a  public  enemy. 

When  -  re  org  inized  into  armies  in  large  num- 

erthrow  the    government,  invade   the   territory 

ating  thereto,  attack,  and  seize,  and 

■  tic  property  not  of  the  government  only,but 

of  all   persona   who  continue   loyal,  such   proceedings 

.ur  in  all  its  terrors  —  a  war  of  subjugation 


WAR    POWERS    OF    CONGRESS.  43 

and  of  conquest,  as  well  as  of  rebellion.  Far  less  than 
these  operations  constitutes  the  levying  of  tvar,  as  those 
terms  are  explained  in  the  language  of  the  consti- 
tution. 

"  War  is  levied"  on  the  United  States  wherever  and 
whenever  the  crime  of  treason  is  committed,  (see  Con- 
stitution, Art.  III.,  Sect.  3,  CI.  3,)  and  under  that  clause, 
as  interpreted  by  the  Supreme  Court,  "war  is  levied" 
when  there  exists  a  combination  resorting  to  overt  acts 
to  oppose  generally  the  execution  of  any  law  of  the 
United  States,  even  if  no  armed  force  be  used.  The  lan- 
guage of  the  constitution  is  clear  and  express.  "  Trea- 
son shall  consist  only  in  levying  war  upon  the  United 
States,  or  in  giving  aid  and  comfort  to  the  enemy." 
If,  therefore,  any  person,  or  collection  of  persons,  have 
committed  the  crime  of  treason,  the  constitution  de- 
clares them  to  have  levied  tvar.  As  traitors  they  have 
become  belligerent,  or  war  levying  enemies. 

War  may  be  waged  against  the  government  or  hj  the 
government ;  it  may  be  either  offensive  or  defensive. 
Wherever  war  exists  there  must  be  two  parties  to  it. 
If  traitors  (belligerents  by  the  terms  of  the  constitu- 
tion) are  one  party,  the  government  is  the  other  party. 
If,  when  treason  is  committed,  any  body  is  at  war,  then 
it  follows  that  the  United  States  are  at  war.  The 
inhabitants  of  a  section  of  this  country  have  issued  a 
manifesto  claiming  independence ;  they  have  engaged 
in  open  war  on  land  and  sea  to  maintain  it;  they  have 
invaded  territory  of  peaceful  and  loyal  sections  of  the 
Union  ;  they  have  seized  and  confiscated  ships,  arsenals, 
arms,  forts,  public  and  private  property  of  our  govern- 
ment and  people,  and  have  killed,  captured,  and  impris- 
oned soldiers  and  private  citizens.     Of  the  million  of 


1  !  nil  HON    I  P    i  in:    i  NltED    E  VA 

men  in  arms,  arc  those  on  one  Bide  levying  war.  and 
>sed  to  them  tu  t  levj  ing  war  ? 
\-  ii  takes  two  parties  to  carry  on  war,  either  party 
may  begin  it.     That    party   which  begins  usually  de- 
es war.     But  when  it   Is  actually  begun,  the  party 
is  as  much  at  war  as  the  party  who  made  the 
Tlic  United  State- arc  at  was  with  rebels,  in 
the  strictly  legal  and  constitutional  sense  of  the  term, 
and  have  therefore  all  the  rights  against  them  which 
:      iw  from  a  state  of  war,  in  addition  to  those  which 
derived    from    the    fact    that  the    rebels  are  also 

REBELS  M  \Y   BE    I  i: I :  v  I  I : I >  AS  BELLIGERENTS   \\l>  as  SUBJECTS. 

Wars  may  be  divided  into  two  classes,  foreign  and 
civil.  In  all  civil  wars  the  government  claims  the  bel- 
ligerents, in)  both  sides,  as  subjects,  and  has  the  legal 
right  to  treat  the  insurgents  both  as  subjects  and  as 
belligerents j  and  they  therefore  may  exercise  the  full 
and  untrammelled  i  tf  war  against  their  subjects, 

or  they  may.  in  their  discretion,  relieve  them  from  any 
•  •I"  the  pains  and  penalties  attached  to  either  of  these 
characters.     The   right  of  a  country  to  treat  its  rebel- 
•  citizens  both  as  belligerents  and  as  subjects  has  long 
lized  in  Europe,  and  by  the  Supreme  Court 
of  the    United  States.*  Jn    the  civil   war  between  St. 
I       lingo  and   France,  such   rights  were  exercised,  and 
[lized   as    legitimate    in    Rose  v.    Himely,  4 
I       ich,  272.     So  in  Cherriot  v.   Foussatt,  3  Binney,  252. 
In  Dobru  v.  Napier,  3  Scott  R  225,  it  was  held  that  a 
:ade  of  the  coast   of  Portugal,  by  the  Queen  of 
that  country,  was   lawful,  and  a  was  condemned 

for  running  the  blockade.     The  cases 

•  Sei  i:  '*    A.  ps gi  215. 


WAR    POWERS    OF    CONGRESS.  45 

of  the  Santisima  Trinidad,  7  Wheat.  306,  and  United 
States  v.  Palmer,  3  W.  635,  confirm  this  doctrine.  By 
the  terms  of  the  constitution  defining  treason,  a  traitor 
must  be  a  subject  and  a  belligerent,  and  none  but  a  belliger- 
ent subject  can  be  a  traitor. 

The  government  have  in  fact  treated  the  insurgents 
as  belligerents  on  several  occasions,  without  recognizing 
them  in  express  terms  as  such.  They  have  received 
the  capitulation  of  rebels  at  Hatteras,  as  prisoners  of 
war,  in  express  terms,  and  have  exchanged  prisoners 
of  war  as  such,  and  have  blockaded  the  coast  by 
military  authority,  and  have  officially  informed  other 
nations  of  such  blockade,  and  of  their  intention  to 
make  it  effective,  under  the  present  law  of  nations. 
They  have  not  exercised  their  undoubted  right  to 
repeal  the  laws  making  either  of  the  blockaded  har- 
bors ports  of  entry.  They  have  relied  solely  on  their 
belligerent  rights,  under  the  law  of  nations. 

Having  thus  the  full  powers  and  right  of  making 
and  carrying  on  war  against  rebels,  both  as  subjects 
and  as  belligerents,  this  right  frees  the  President  and 
Congress  from  the  difficulties  which  might  arise  if 
rebels  could  be  treated  only  as  subjects,  and  if  war 
could  not  be  waged  upon  them.  If  conceding  to  rebels 
the  privileges  of  belligerents  should  relieve  them  from 
some  of  the  harsher  penalties  of  treason,  it  will  subject 
them  to  the  liabilities  of  the  belligerent  character. 
The  privileges  and  the  disadvantages  are  correlative. 
But  it  is  by  no  means  conceded  that  the  government 
may  not  exercise  the  right  of  treating  the  same  rebels 
both  as  subjects  and  as  belligerents.  The  constitution 
defines  a  rebel  who  commits  treason  as  one  who  "  levies 
war"  on  the  United  States:    and  the  laws  punish  this 


ith,  thus  expressly  treating 

the  same  pi  Those  who 

their   necks  from   the   halter  by  claiming  to  be 

treated  as   prisoners  of  war,  and  so  t'>   protecl  them- 

ider  the  shield  of  belligerent  rights,  must  bear 

lit  of  thai  shield,  and  submit  to  the  legal  con- 

;'  the  character  they  claim.     They  cannot 

sail  under  two  flags  at   the  same  time.     Hut   a   rebel 

bo  be  a  subject  because  he  has  turned 

institution  expressly  authorizes  Congress 

to  pass  laws  to  punish  traitor — that  is,  belligerent  — 

subjects  :  and  suppressing  rebellion  by  armed  force  is 

making  war.     Therefore  the  war  powers  of  government 

full  belligerent  rights  against  rebels  in  arms. 

I 

Tin:    I   \W   OF    NATIONS    IS   ABOVE   THE   CONSTITUTION. 

Saving  shown  that  the  United  States  being  actually 
in  civil  war,  —  in  other  words,  having  become  a 
belligerent  power,  without  formal  declaration  of  war, — 
it  is  important  to  ascertain  what  some   of  the  rights  of 
re,  according  to  the  law  of  nations.     It  will, 
rved  that  the  law  of  nations   is  above  the  con- 
stitution of  any  government  ;  and  no  people  would  be 
justified   by  it^  peculiar  constitution   in   violating  the 
rights  of  other  nations.     Tims,  if  it  had  been  provided 
in  the  Articles  of  Confederation,  or  in  the  present  con- 
stitution, that  all  citizens  should  have  the  inalienable 
right  t<»  practise  the  profession  of  •piracy  upon  the  ships 
and  property  of  foreign  nations,  or  that  they  should  he 
lawfully  empowered  to   make  incursions   into  England,' 
Fran  her  countries,  and  seize  by  force  and  bring 

home  such  men  and  women  as  they  should  select,  and, 
if  these  privileges  should   be  put  in  practice,  England 


WAR    POWERS    OF    CONGRESS.  47 

and  France  would  be  justified  in  treating  us  as  a  nest 
of  pirates,  or  a  band  of  marauders  and  outlaws.  The 
whole  civilized  world  would  turn  against  us,  and  we 
should  justly  be  exterminated.  An  association  or 
agreement  on  our  part  to  violate  the  rights  of  others, 
by  whatever  name  it  may  be  designated,  whether  it  be 
called  a  constitution,  or  league,  or  conspiracy,  or  a  do- 
mestic institution,  is  no  justification,  under  the  law  of 
nations,  for  illegal  or  immoral  acts. 

INTERNATIONAL    BELLIGERENT    RIGHTS    ARE    DETERMINED    BY    THE 
LAW    OF  NATIONS. 

To  determine  what  are  the  rights  of  different  nations 
when  making  war  upon  each  other,  we  look  only  to 
the  law  of  nations.  The  peculiar  forms  or  rights  of 
the  subjects  of  one  of  these  war-making  parties  under 
their  own  government  give  them  no  rights  over  their 
enemy  other  than  those  which  are  sanctioned  by  in- 
ternational law.  In  the  great  tribunal  of  nations,  there 
is  a  "  higher  law "  than  that  which  has  been  framed 
by  either  one  of  them,  however  sacred  to  each  its 
own  peculiar  laws  and  constitution  of  government 
may  be. 

But  while  this  supreme  law  is  in  full  force,  and  is 
binding  on  all  countries,  softening  the  asperities  of  war, 
and  guarding  the  rights  of  neutrals,  it  is  not  conceded 
that  the  government  of  the  United  States,  in  a  civil 
war  for  the  suppression  of  rebellion  among  its  own  cit- 
izens, is  subject  to  the  same  limitations  as  though  the 
rebels  were  a  foreign  nation,  owing  no  allegiance  to 
the  country. 

With  this  caveat,  it  will  be  desirable  to  state  some 
of  the  rights  of  belligerents. 


-lii'i  lit •  N    OF   THE    i  mn  i'    E  i  LTB8. 
'   i    RIGHT  OF  CONFI8CATIOH    OP   PERSONAL   Kstvi  i 

Either  belligerent  ma  and  confiscate  all  ///<■  property 

of  th,  .        and  or  <>n  t/tr  sea,  including  real  as  weU  as 

ate. 

PRIZE  «  "I  i:  ra. 

As  the   property  of  ;ill  nations  lias  an  equal   right 
upon  thr  high  seas,  (the  highway  of  nation-.)  in  order 
oteel   tin1  commerce   of  neutrals   from   unlawful 
into  rference,   it   is   necessary   that    ships   and   cargoes 
1  on  the  ocean  should  be  brought  before  some  prize 
:.  that   it   may  be  judicially  determined  whether 
the  captured  vessel  and  cargo  were,  in  whole  or  in  part, 
enemy's  property  or  contraband  of  Avar.     The  decision 
of  any  prize  court,  according  to  the  law  of  nations,  is  con- 
clusive against  all  the  world.    Where  personal  property 
of  the  enemy  i>  captured  from  the  enemy, on  land,  in  the 
enemy's  country,  no  decision  of  any  court  is  necessary 
t'»  give  a  title  thereto.     Capture  passes  the  title.     This 
i-  familiar  law  as  administered  in  the  courts  of  Europe 
and  America.* 

TITLE  BY   CAFTUBE.t 

Some  persons  have  questioned  whether  title  passes 

in  this  country  by  capture  or  confiscation,  by  reason  of 

of  the   limiting  clauses  of  the  constitution ;  and 

othei  gone  so   far  as  to  assert  that  all  the  pro- 

ceedings  under  martial  law,  such  as  capturing  enemy's 

property,  imprisonment  of  spies  and  traitors,  and  seizures 

of  articles  contraband  of  war,  and  suspending  the  habeas 

.  are  in   violation  of  the  constitution,  which  de- 

10  man  shall  be  deprived  of  life,  liberty,  or 

oj  Wellington,  2  Buss. &Mylne,35.    Lord  Brougham 
said  that  military  prize  rests  upon  the   same  principles  of  law  as  prize 
at  sea,  though   in   general   no  statute   passes  with  respect  to  it.     See    1 
■'>'. 
t  See  the  priz*  pendix,  p.  111. 


WAR    POWERS    OF    CONGRESS.  49 

property  without  due  process  of  law  ; :J:  that  private 
property  shall  not  be  taken  for  public  use  without  just 
compensation ;  *{*  that  unreasonable  searches  and  seiz- 
ures shall  not  be  made  ;  J  that  freedom  of  speech  and 
of  the  press  shall  not  be  abridged ;  §  and  that  the 
right  of  the  people  to  keep  and  bear  arms  shall  not  be 
infringed.  || 

THESE   PROVISIONS  JNOT   APPLICABLE   TO  A   STATE   OF  WAR. 

If  these  rules  are  applicable  to  a  state  of  war,  then 
capture  of  property  is  illegal,  and  does  not  pass  a  title  ; 
no  defensive  war  can  be  carried  on ;  no  rebellion  can 
be  suppressed  ;  no  invasion  can  be  repelled  ;  the  army 
of  the  United  States,  when  called  into  the  field,  can  do 
no  act  of  hostility.  Not  a  gun  can  be  fired  constitu- 
tionally, because  it  might  deprive  a  rebel  foe  of  his  life 
without  due  process  of  laiv  —  firing  a  gun  not  being 
deemed  "  due  process  of  law." 

Sect.  4  of  Art.  IV.  says,  that  "  the  United  States  shall 
guarantee  to  every  State  in  this  Union  a  republican 
form  of  government,  and  shall  protect  each  of  them 
against  invasion,  and,  on  application  of  the  legislature, 
or  of  the  Executive,  when  the  legislature  cannot  be 
convened,  against  domestic  violence." 

Art.  I.  Sect.  8,  gives  Congress  power  to  declare  war, 
raise  and  support  armies,  provide  and  maintain  a  navy  ; 
to  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrection  and  repel  in- 
vasion ;  to  provide  for  organizing,  arming*and  disciplin- 
ing the  militia,  and  for  governing  such  part  of  them  as 
may  be  in  the  service  of  the  United  States. 

*  Constitutional  Amendments,  Art.  V.  f  Ibid.  Art.  V. 

t  Ibid.  Art.  IV.  §  Ibid.  Art.  I.  ||  Ibid.  Art.  II. 

7 


I    nn  HOW    OP   THE    i  Mill'      i  iTES. 

these  rules  above  cited  have  an}  application  in  a 
time  of  war,  the  United  States  cannot  protect  each  of  the 

■II    bj    fili.  >  11-    of  other   Slates,  nor 

is<  domestic  violence ;  nor  can  the  army,  or  militia, 

01  oavy  be  used  for  any  of  the  purposes  for  which  the 

titution  authorizes  or  requires  their  employment 

It"  all  men  have  the  righf   to  "keep  ami   bear  arms," 

what  right  has  the  army  of  the   Union   to  take  them 

away  from   rebels?     It' -no  one  can   constitutionally 

leprived  of  life,  liberty,. or  property,  without  due 

process  i>\'  law,"  by  what  righi  doe-  government  seize 

and  imprison  traitors '.'      By  what  righi    does   the  army 

kill  rebels  in    arms,  or  burn   up  their  military  stores  ? 

It' the  only  way  of  dealing  constitutionally  with  rebels 

in  arm-  to  law  with  them,  the  President  should 

convert  his  army  into  lawyers,  justices  of  the  peace, 

and  constables,  and  serve  "  summonses  to  appearand 

answer  to  complaints,"  instead  of  a  summons  to  surrender. 

1 1<  should  send  ••  greetings  "  instead  of  sending  rifle  shot. 

He  should  load  his  caissons  with  "  pleas  in  abatement 

and  demurrers,"  instead  of  thirty-two  pound  shell  and 

irra]."  Bhot    In  Bhort,  h<-  should  levy  writs  of  execution, 

instead    of  levying    war.      On    the    contrary,  the    coni- 

mander-in-chief  proposes  a   different  application  of  the 

of  law.     His  summons  is.  that  rebels  should 

own  their  arms;  his  pleas  are  batteries  and  gun- 

tsj  his  arguments  are  hot  shot,  and  always  a  to  the 

and  when   his  fearful   execution  is  " levied  on 

•    if  that  is  left  will  he  for  the  undertaker. 

TRUE   APPLICATION    or  THESE   CONSTITUTIONAL   GUARANTEES. 

The  clauses  which  have  heen  cited  from  the  amend- 
ment- to  the  constitution  were  intended  as  declarations 


WAR    POWERS    OF    CONGRESS.  51 

of  the  rights  of  peaceful  and  loyal  citizens,  and  safe* 
guards  in  the  administration  of  justice  by  the  civil  tri- 
bunals ;  but  it  was  necessary,  in  order  to  give  the  gov- 
ernment the  means  of  defending  itself  against  domestic 
or  foreign  enemies,  to  maintain  its  authority  and  dig- 
nity, and  to  enforce  obedience  to  its  laws,  that  it  should 
have  unlimited  war  powers ;  and  it  must  not  be  for- 
gotten that  the  same  authority  which  provides  those 
safeguards,  and  guarantees  those  rights,  also  imposes 
upon  the  President  and  Congress  the  duty  of  so  carry- 
ing on  war  as  of  necessity  to  supersede  and  hold  in 
temporary  suspense  such  civil  rights  as  may  prove  in- 
consistent with  the  complete  and  effectual  exercise  of 
',  such  war  powers,  and  of  the  belligerent  rights  result- 
ing from  them.  The  rights  of  war  and  the  rights  of 
peace  cannot  coexist.  One  must  yield  to  the  other. 
Martial  law  and  civil  law  cannot  operate  at  the  same 
time  and  place  upon  the  same  subject  matter.  Hence 
the  constitution  is  framed  with  full  recognition  of  that 
fact ;  it  pro'tects  the  citizen  in  peace  and  in  war ;  but 
his  rights  enjoyed  under  the  constitution,  in  time  of 
peace  are  different  from  those  to  which  he  is  entitled 
in  time  of  war. 

WHETHER    BELLIGERENTS  SHALL  BE  ALLOWED  CIVIL  RIGHTS  UNDER 
THE  CONSTITUTION    DEPENDS    UPON  THE  POLICY  OF  GOVERNMENT. 

None  of  these  rights,  guaranteed  to  'peaceful  citizens,  by  the 
constitution  belong  to  them  after  they  have  become  belligerents 
against  their  own  government.  They  thereby  forfeit  all 
protection  under  that  sacred  charter  which  they  have 
..  thus  sought  to  overthrow  and  destroy.  One  party  to 
a  contract  cannot  break  it  and  at  the  same  time  hold 
the  other  to  perform  it.     It  is  true  that  if  the  govern- 


I  HON    i 'I     nil     UNITED    BTA] 

meul  electa  to  treat  them  as  subjects  and  to  hold  thei  i 
.\\  to  penalties  for  violating  statutes,  it   must 
concede  to  them  all  the    I  iits   and    privileges 

which  other  -  would  have  when  under  similar 

ations ;  and  Congress  must  be  limited  to  the  pro- 
as of  the  constitution  in  legislation  against   them 
itizens.     But   the  fad   that  war  is  waged  by  these 
he  go^ ernment  from  all  obligation 
to  make  that  concession,  or  to  respect  the  rights  to  life, 
by,  or  property  of  it-  enemy,  because  tin'  constitu- 
tion makes  it  the  duty  of  the   President  to  prosecute 
war  againsl   them  in  order  to  suppress  rebellion  and 
1  invasion. 

THE   CONSTITUTION   ALLOWS  CONFISCATION. 

Nothing  in  the  constitution  interferes  with  the  bel- 
nt  right  of  confiscation  of  enemy  property.     The 
right  to  confiscate  is  derived  from  a  state  of  war.     It  is 
one  of  the  rights  of  war.     It  originates  in  the  principle 
rvation.     It  is  the  means  of  weakening  the 
enemy  and  strengthenin  Ives.     The  right  of  con- 

tion  belongs  to  the  government  as  the  necessary 
consequence  of  the  power  and  duty  of  making  war  — 
offensive  or  defensive.     Every  capture  of  enemy  am- 
munition or  arms  is,  in  substance,  a  confiscation,  with- 
ts  formalities.     To  deny  the  right  of  confiscation 
sny  the  right  to  make   war,  or  to  conquer  an 

ay. 

If  authority  were  needed  to  support  the  right  of  con- 

tion,  it   may  be  found   in  3  Dallas,  227;  Vat.  lib. 

:  lib.  hi.,  ch.  9,  sect.  161;   Smith  v. 

■'.  Cranch,  306-7;    Cooper  v.   Telfair,  4  Dallas; 

■  v.  U.  ■  inch,  110,  228,  229. 


WAR    POWERS    OF    CONGRESS.  53 

The  following  extract  is  from  1  Kent's  Com.,  p.  59 :  — 

"  But  however  strong  the  current  of  authority  in  favor  of  the  mod- 
ern and  milder  construction  of  the  rule  of  national  law  on  this  subject, 
the  point  seems  to  be  no  longer  open  for  discussion  in  this  country ; 
and  it  has  become  definitively  settled  in  favor  of  the  ancient  and 
sterner  rule  by  the  Supreme  Court  of  the  United  States.  Brown  v. 
United  States,  8  Cranch,  110  ;  ibid.  228,  229. 

"  The  effect  of  war  on  British  property  found  in  the  United  States 
on  land,  at  the  commencement  of  the  war,  was  learnedly  discussed 
and  thoroughly  considered  in  the  case  of  Brown,  and  the  Circuit  Court 
of  the  United  States  at  Boston  decided  as  upon  a  settled  rule  of  the 
law  of  nations,  that  the  goods  of  the  enemy  found  in  the  country,  and 
all  vessels  and  cargoes  found  afloat  in  our  ports  at  the  commencement 
of  hostilities,  were  liable  to  seizure  and. confiscation  ;  and  the  exercise 
of  the  right  vested  in  the  discretion  of  the  sovereign  of  the  nation. 

"  When  the  case  was  brought  up  on  appeal  before  the  Supreme 
Court  of  the  United  States,  the  broad  principle  was  assumed  that  war 
gave  to  the  sovereign  the  full  right  to  take  the  persons  and  confiscate 
the  property  of  the  enemy  wherever  found;  and  that  the  mitigations 
of  this  rigid  rule,  which  the  wise  and  humane  policy  of  modern  times 
had  introduced  into  practice,  might,  more  or  less,  affect  the  exercise 
of  the  right,  but  could  not  impair  the  right  itself. 

"  Commercial  nations  have  always  considerable  property  in  posses- 
sion of  their  neighbors  ;  and  when  war  breaks  out,  the  question,  What 
shall  be  done  with  enemy  property  found  in  the  country  ?  is  one  rather 
of  policy  than  of  law,  and  is  one  properly  addressed  to  the  considera- 
tion of  the  legislature,  and  not  to  the  courts  of  law. 

"  The  strict  right  of  confiscation  of  that  species  of  property  existed 
in  Congress,  and  without  a  legislative  act  authorizing  its  confiscation 
it  could  not  be  judicially  condemned  ;  and  the  act  of  "Congress  of  1812 
declaring  war  against  Great  Britain  was  not  such  an  act.  Until  some 
statute  directly  applying  to  the  subject  be  passed,  the  property  would 
continue  under  the  protection  of  the  law,  and  might  be  claimed  by  the 
British  owner  at  the  restoration  of  peace. 

"  Though  this  decision  established  the  right  contrary  to  much  of 
modern  authority  and  practice,  yet  a  great  point  was  gained  over  the 
rigor  and  violence  of  the  ancient  doctrine,  by  making  the  exercise  of 
the  right  depend  upon  a  special  act  of  Congress." 

From  the  foregoing  authorities,  it  is  evident  that  the 


-mi  PION    OP    nil.   i  Mill'   STATES. 

!ii-  :i  right,  as  a  belligerenl   power,  to  cap 

>nfiscate  any  and  all  the  personal  property 

of  the  enemy;  that  there  is  nothing  in  tin'  constitution 

which  limits  or  controls  the  exercise  of  thai  righl  ;  and 

that   capture  in  war,  or  confiscation  by  law.  passes  a 

complete  title  to  the  property  taken;   and  that,  if  //'-//- 

condemnation  of  enemy  property   be  sought,   in 

.  to  pass  the  title  to  it  by  formal  decree  of  courts, 

izure, and  without  capture,  the  confiscation 

must    have  been  declared  by  acl  of  Congress,  a  mere 

iration  of  war  not   being  ex  vi  termini  sufficient  for 

that  luni  — .     The  army  of  the  Union,  therefore,  have 

the  right,  according   to    the   law  of  nations,  and   of  the 

constitution,  to  obtain  by  capture  a  legal  title  to  all  the 

sonal  property  of  the  enemy  they  get  possession 

of.  whether  it  consist  of  anus,  ammunition,  provisions, 

slave-,  or  any  other   thing  which  the   law  treats  as  per- 

irty.      No  judicial   process  is  necessary  to 

.'■nnnent  full  title  thereto,  and  when  once 

captured,  the  governmenl  may  dispose  of  the  property 

lute    owner    thereof,   in    the    same   manner   as 

though   the   title  passed  by  hill  of  sale:   and  Congress 

have   plenary  authority  to  pass  such  confiscation  laws 

inst  belligerenl  enemies  as  they  deem  for  the  public 

■  1. 

MILITARY   GOVERNMENT   UNDEB   MARTIAL  LAW. 

In  addition  to  the  right  of  confiscating  personal  property 
.iy.  a   state    of  war  also   confers   upon   the 
irnment  other  no!  less  important  belligerent  rights, 
and  among  them,  the  right  to  seize  and  hold  conquered 
itory  by  military  force,  and  of  instituting  and  main- 
taining military  government  over  it,  thereby  suspend- 
ing in  part,  or  in  the  whole,  the  ordinary  civil  adminis- 


WAR   POWERS    OF    CONGRESS.  55 

tration.  The  exercise  of  this  right  has  been  sanctioned 
by  the  decision  of  the  Supreme  Court  of  the  United 
States,  in  the  case  of  California/15  And  it  is  founded  upon 
well-established  doctrines  of  the  law  of  nations.  Without 
the  right  to  make  laws  and  administer  justice  in  con- 
quered territory,  the  inhabitants  would  be  plunged  into 
anarchy.  The  old  government  being  overthrown,  and  no 
new  one  being  established,  there  would  be  none  to  whom 
allegiance  would  be  due  —  none  to  restrain  lawlessness, 
none  to  secure  to  any  persons  any  civil  rights  what- 
ever. Hence,  from  the  necessity  of  the  case,  the  con- 
queror has  power  to  establish  a  quasi  military  civil  ad- 
minfstration  of  government  for  the  protection  of  the 
innocent,  the  restraint  of  the  wicked,  and  the  security 
of  that  conquest  for  which  war  has  been  waged."|" 

It  is  under  this  power  of  holding  and  establish- 
ing military  rule  over  conquered  territory,  that  all 
provisional  governments  are  instituted  by  conquer- 
ors. The  President,  as  commander-in-chief,  has  for- 
mally appointed  Andrew  Johnson  governor  of  Ten- 
nessee, with  all  the  powers,  duties,  and  functions  per- 
taining to  that  office,  during  the  pleasure  of  the  Presi- 
dent, or  until  the  loyal  inhabitants  of  that  State  shall 
organize  a  civil  government  in  accordance  with  the  con- 
stitution of  the  United  States.  To  legalize  these  powers 
and  duties,  it  became  expedient  to  give  him  a  military 
position ;  hence  he  was  nominated  as  a  brigadier  gen- 
eral, and  his  nomination  was  confirmed  by  the  Senate. 
Mr.  Stanley  acts  as  provisional  military  governor  of  North 
Carolina,  under  similar  authority.  All  acts  of  military 
government  which  are  within  the  scope  of  their  author- 
ity, are  as  legal  and  constitutional  as  any  other  military 

*  Cross  v.  Harrison,  16  How.  164-190. 

f  See  Fleming  v.  Page,  d  How.  615.  Leitensdorfer  y.  Webb,  20  How.  177. 
As  to  California,  see  Stat,  at  Large,  Vol.  ix.  p.  452.  New  Mexico,  Stat,  at 
Large,  ibid.  446.  Halleck  on  International  Law,  781.  Story  on  Const,  Sect. 
1324.     Amer.  Ins.  Co.  y  .'Canter,  1  Pet.  S.  C.  R.  542-3. 


nil  [TON    OF   THE    UNITED    BTATE8. 

1 !  mce  b  i     jection  of  this  country,  \\  hich, 
joined   in  a  genera]  rebellion,  Bhal]  have  been 
and  conquered   by  the  military  forces  of  the 
id   States,  may   be  subjected   to  military  govern- 
ment, and  the   rights  of  citizens  in   those  districts  are 
subject  to  martial  law.  bo  long  as  the  war  lasts.     What- 
ever of  their  rights   of   property  are  lost  in    and    by 
the  war,  are  lost  forever.     No  citizen,  whether  loyal  or 
I,  is  deprived  of  any  right  guaranteed  to  him  in 
the   constitution   by   reason  of  his   subjection  to  mar- 
.   because  martial  law,  when   in   force,  is  constitu- 
The  people  of  the  United  States,  through 
their  lawfully  chosen  commander-in-chief,  have  the  con- 
stitutional righl  to  Beize  and  hold  the  territory  of  a  bel- 
ent  enemy,  and  to  govern  it  by  martial  law,  thereby 
superseding  the  local  government  of  the  place,  and  all 
rights  which  rebels  might  have  had  as  citizens  of  the 
United  State-,  if  they  had  not  violated  the  laws  of  the 
land  by  making  war  upon  the  country. 

Bj   martial   law.  loyal   citizens  may  be  for  a  time  de- 
1  from  enjoying  the  lights  they  would  be  entitled 
t<>  in  time  of  peace.     Individual  rights  must  always  be 
held  subject  to  the  exigencies  of  national  safety. 

In  war.  when  martial  law  is  in  force,  the  laws  of  war 

he  law-  which  the  constitution  expressly  authorizes 

and  requires  to  be  enforced.     The  constitution,  when  it 

calls  into  action  martial  law,  for  the   time  change-  civil 

rhts  which  the  citizen  would   he  entitled  to 

in  peace,  because  the  rights  of  persons   in  one  of  these 

<     totally  incompatible   with    the  obligations  of 

►ns    in    the    other.      Peace  and   war    cannot    exist 

:  the  law-  of  peace  and  of  war  cannot  operate 

therj  th  -and  procedures  of  peaceful  times 


WAR    POWERS    OF    CONGRESS.  57 

are  incompatible  with  those  of  war.  It  is  an  obvious  but 
pernicious  error  to  suppose  that  in  a  state  of  ivar,  the 
rules  of  martial  law,  and  the  consequent  modification 
of  the  rights,  duties,  and  obligations  of  citizens,  pri- 
vate and  public,  are  not  authorized  strictly  under  the 
constitution.  And  among  the  rights  of  martial  law,  none 
is  more  familiar  than  that  of  seizing  and  establishing: 
a  military  government  over  territory  taken  from  the 
enemy ;  and  the  duty  of  thus  protecting  such  territory 
is  imperative,  since  the  United  States  are  obligated  to 
guarantee  to  each  State  a  republican  form  of  govern- 
ment* That  form  of  government  having  been  over- 
thrown by  force,  the  country  must  take  such  steps, 
military  and  civil,  as  may  tend  to  restore  it  to  the  loyal 
citizens  of  that  State,  if  there  be  any ;  and  if  there 
be  no  persons  who  will  submit  to  the  constitution 
and  laws  of  the  United  States,  it  is  their  duty  to 
hold  that  State  by  military  power,  and  under  military 
rule,  until  loyal  citizens  shall  appear  there  in  sufficient 
numbers  to  entitle  them  to  receive  back  into  their  own 
hands  the  local  government. 

A   SEVERE   RULE   OF   BELLIGERENT   LAW. 

"  Property  of  persons  residing  in  the  enemy's  country 
is  deemed,  in  law,  hostile,  and  subject  to  condemnation 
without  any  evidence  as  to  the  opinions  or  predilections 
of  the  owner."  If  he  is  the  subject  of  a  neutral,  or  a 
citizen  of  one  of  the  belligerent  States,  and  has  ex- 
pressed no  disloyal  sentiments  towards  his  country, 
still  his  residence  in  the  enemy's  country  impresses 
upon  his  property,  engaged  in  commerce  and  found 
upon  the  ocean,  a  hostile  character,  and  subjects  it  to 

*  Constitution,  Art.  IV.,  Sect.  4.,  CI.  1. 
8 


HTUTION    OP   Tin:   DOTTED   BTATE8. 

condemnation.     This  familiar  principle  of  law  is  sanc- 
tioned  in  ilif  highest   courts  of   England  and  of  the 
United  States,  and  lias  been  decided  to  apply  to  cases 
as  \\  ell  as  of  foreign  war.* 
Thus  personal  property  of  every  kind,  ammunition, 
provisions,    contraband,    or   slaves,   may    be   lawfully 
id,  whether  of  loyal  or  disloyal  citizens,  and  is  bylaw 
.  and    liable    to   condemnation,  if  captured 
within  fir  This   right  of  seizure  and 

condemnation  is  harsh,  as  all  the  proceedings  of  war 
are  harsh,  in  the  extreme,  but  it  is  nevertheless  lawful. 
It  would  be  harsh  to  kill  in  battle  a  loyal  citizen  who, 
having  keen  impressed  into  the  ranks  of  the  rebels,  is 
made  to  fight  against  his  country j  yet  it  is  lawful  to 
do  BO, 

Against  all  persons  in  arms,  and  against  all  property 
situated  and  Beized  in  rebellious  districts,  the  laws  of 
war  give   the    President   full    belligerent    rights;   and 
when  the  army  and  navy  are  onou  lawfully  called  out, 
there  are  no   limits   to   the  war-making   power  of  the 
ther  than  the  law  of  nations,  and  such  rules 
may  pass  for  their  regulation. 
-  The  statute  of  1807,  chap.  39,"  says  alearned  judge,f 
ivides  thai  whenever  it  is  lawful  for  the  President 
dl  forth  the  militia  to  Buppress  an  insurrection,  he 
employ  the  land  and  naval  forces  for  that  purpose. 
The  authority  to    use   the   army  is  thus  expressly  con- 
firmed, knt   the  manner  in  which  they  are  to  be  used  is 
not  prescribed.     That  is  left  to  the  discretion  of  the 
tided  by  the  usages  and  principles  of  civil- 
ized wa 

•  The  Venus,  8  Cranch  Hep.;  The  Hoop,  1  Robinson,  196,  —  and  cases 
there  cited.     The  Amy  Warwick,  opinion  of  Judge  Sprague. 

*  Judge  Sprague. 


WAR    POWERS    OF    CONGRESS.  59 

As  a  matter  of  expediency,  Congress  may  dhect  that 
no  property  of  loyal  citizens,  residing  in  disloyal  States, 
should  be  seized  by  military  force,  without  compensa- 
tion. This  is  an  act  of  grace,  which,  though  not  re- 
quired by  the  laws  of  tvar,  may  well  be  granted.  The 
commander-in-chief  may  also  grant  the  same  indul- 
gence. But  the  military  commanders  are  always  at 
liberty  to  seize,  in  an  enemy's  country,  whatever  prop- 
erty they  deem  necessary  for  the  sustenance  of  troops, 
or  military  stores,  whether  it  is  the  property  of 
friend  or  enemy ;  it  being  usual,  however,  to  pay  for 
all  that  is  taken  from  friends.  These  doctrines  have 
been  carried  into  effect  in  Missouri. 

The  President  having  adopted  the  policy  of  pro- 
tecting loyal  citizens  wherever  they  may  be  found,  all 
seizure  of  their  property,  and  all  interference  with  them, 
have  so  far  been  forborne.  But  it  should  be  understood 
that  such  forbearance  is  optional,  not  compulsory.  It 
is  done  from  a  sense  of  justice  and  humanity,  not  be- 
cause law  or  constitution  renders  it  inevitable.  And 
.this  forbearance  is  not  likely  to  be  carried  to  such  an 
extent  as  to  endanger  the  success  of  the  armies  of  the 
Union,  nor  to  despoil  them  of  the  legitimate  fruits  of 
victory  over  rebels. 

CIVIL  EIGHTS   OF  LOYAL    CITIZENS   IN  LOYAL    DISTRICTS   ARE   MODI- 
FIED BY  THE  EXISTENCE  OF  WAR. 

While  war  is  raging,  many  of  the  rights  held  sacred 
by  the  constitution  —  rights  which  cannot  be  violated  by 
any  acts  of  Congress  —  may  and  must  be  suspended  and 
held  in  abeyance.  If  this  were  not  so,  the  government 
might  itself  be  destroyed ;  the  army  and  navy  might 
be  sacrificed,  and  one  part  of  the  constitution  would 
nullify  the  rest. 


'.    OP    THE    [JOTTED    STA1 

cannol  be  suppressed,  spies  can- 
not be  caught,  imprisoned,  and  hun  ■. 

If  cannol   be  interfered  with,  all 

our  military  plans  may  be  betrayed  to  the  enemy. 
If  no  man  can  be  dep  >"/<  without  trial  by  jury  y 

tidier  cannol  Blay  the  enemy  in  battle. 
If  property  cannot   be   taken    without  "due 

|  of  law,"  how  can  the  soldier  disarm   his  foe  and 

his  weapons  V 
If  no  person  can  l"v  arrested,  sentenced, and  shot)  with- 
out trial  by  jury  in  the  county  or  State  where  his  crime 
is  alleged  to  have  been  committed,  how  can  a  deserter 
'■  ■'.  or  a  spy  be  hung,  or  an  enemy  be  taken  prisoner  ? 
It  has  been  said  thai  "amidst  arms  the  laws  are  silent.*' 
It  would  be  morejusl  to  say,  that  while  war  rages,  the 
rights,  which  in  peace  are  sacred, must  and  do  give  way 
to  the  higher   right  —  the  right  of  public  safety  —  the 
right    which    the    country,  the  whole  country,  claims    to 
be  protected  from  its  enemies,  domestic  and  foreign  — 
from  spies,  from  conspirators,  and  from  traitors.*    The 
sovereign    and    almost    dictatorial    powers  —  existing 
only   in   actual    war;   ending   when    war  ends  —  to    be 
in  Belf-defence,  and  to  he  laid  down  when  the  occa- 
has   passed,  are,  while  they  last,  as  lawful,  as  con- 
'onal,  as  sacred,  as  the  administration  of  justice  by 
judicial   courts   in    times  of  peace.      They  may  be  dan- 
118;   war   itself  is  dangerous;  hut  danger  does  not 
make  it.      [f  the  commander-in-chief 

order-  the  army  to  seize  the  arms  and   ammunition  of 
the  enei  :apture  their  persons;   to  shell  out  their 

batteries;  to  hang  3pies  or  shoot  deserters ;  to  destroy 
the  allied   enemy  in  open  battle;  to  send  traitors  to 

•  "  Among  absolute  international  rights,  one  of  the  most  essential  and  im- 
portant, and  that  which  lies  at  the  root  of  all  the  rest,  is  the  right  of  self-pn  si  r- 
•  only  a  right  in  respect  to  ot  .  but  it  is  a  duty  in  re- 

r-,  and    the  most   solemn   and  important  which   a  state 
."     Win  aton,  p.  1 15,  1 10. 


WAR    POWERS    OF    CONGRESS.  61 

forts  and  prisons ;  to  stop  the  press  from  aiding  and 
comforting  the  enemy  by  betraying  our  military  plans ; 
to  arrest  within  our  lines,  or  wherever  they  can  be 
seized,  persons  against  whom  there  is  reasonable  evi- 
dence of  their  having  aided  or  abetted  the  rebels,  or  of 
intending  so  to  do,  —  the  pretension  that  in  so  doing 
he  is  violating  the  constitution  is  not  only  erroneous, 
but  it  is  a  plea  in  behalf  of  treason.  To  set  up  the 
rules  of  civil  administration  as  overriding  and  control- 
ling the  laws  of  war,  is  to  aid  and  abet  the  enemy.  It 
falsifies  the  clear  meaning  of  the  constitution,  which 
not  "only  gives  the  power,  but  makes  it  the  plain  duty 
of  the  President,  to  go  to  war  with  the  enemy  of  his 
country.  And  the  restraints  to  which  he  is  subject 
when  in  war,  are  not  to  be  found  in  the  municipal 
regulations,  which  can  be  administered  only  in  peace, 
but  in  the  laws  and  usages  of  nations  regulating  the 
conduct  of  war. 

BELLIGERENT  RIGHT   TO   CONFISCATE   ENEMY'S   REAL   ESTATE. 

The  belligerent  right  of  the  government  to  confiscate 
enemy's  real  estate,  situated  in  this  country,  can  hardly  admit 
of  a  question.  The  title  to  no  inconsiderable  part  of 
the  real  estate  in  each  of  the  original  States  of  the 
Union,  rests  upon  the  validity  of  confiscation  acts 
passed  by  our  ancestors  against  loyal  adherents  to  the 
crown.  Probably  none  of  these  States  failed  to  pass 
and  apply  these  laws.  English  and  American  acts  of 
confiscation  were  recognized  by  the  laws  of  both  coun- 
tries, and  their  operation  modified  by  treaties  ;  their 
validity  never  was  denied.  The  only  authority  which  either 
of  the  States  or  colonies  ever  had  for  passing  such 
law7s  was  derived  from  the  fact  that  they  were  bel- 
ligerents. 


nTED    3TA1 

■.ill  be  observed  thai   the  question  as  to  the  belli- 

i!  right  to  confiscate  enemy's  real  estate  situated 

in   the   United   S  >mewhat  different   from  the 

i  whether  in  conquering  a  foreign  country  it. 

will  be  lawful  to  confiscate  the  private   real  estate  of 

the  enemy. 

[t  is  '.'m  ca -■■  ■  :'  of  a  foreign  count  rv. 

ir  i"  do  more  than  to  displace  its  soy- 

jn,  and  assume  dominion  over  the  country.     On  a 

change  of  sovereignty  of  the  country,  it   would  be 

harsh  and  severe   to  confiscate   the    private   property 

and  annul  the  private  rights  of  citizens  generally.    And 

try  does  not  of  itself  operate  as 
confiscation  of  enemy's  property;  nor  dors  the  cession 
of  a  country  by  one  nation  to  another  destroy  private 
rights  of  pn  or  operate  as  confiscation  of  per- 

sonal or  real  estate.*     So  it  was  held  by  the  Supreme 
I        rt  in   the  :'  the   transfer   by  treaty  of  Florida 

to  the  United  States;  but  it   was  specially  provided  in 
that  treaty  that   private  property  should  not  be  inter- 
with.     Tie1  forbearance  of  a  conqueror  from  con- 
!  the  entire  property  of  a  conquered   people  is 
usually  founded  in  good  policy,  as  well  as  in  humanity. 
Tie-  object  of  foreign  conquest   i-  to  acquire  a  perma- 
nent addition  to  the  power  and  territory  of  the  con- 
ir.     Thi  ;   would    be  defeated   by  -tripping 

of  every  thing.  The  case  i-  very  differ- 
ent where  confiscation  will  only  break  up  a  nest  of 
traitors,  and  drive  them  away  froma  country  they  have 

d. 

ipose  thai  in  Englishmen  owned  large  tracts 

•    United  States  v.  Juan  IUchmond,  7  Peters,  r,\. 


WAR   POWERS    OF    CONGRESS.  63 

of  real  estate  in  either  of  the  United  States  or  territo* 
ries  thereof,  and  war  should  break  out ;  would  any  one 
doubt  the  right  of  Congress  to  pass  a  law  confiscating 
such  estate  ? 

The  laws  of  nations  allow  either  belligerent  to  seize 
and  appropriate  whatever  property  of  the  enemy  it  can 
gain  possession  of;  and,  of  all  descriptions  of  property 
which  government  could  safely  permit  to  be  owned  or 
occupied  by  an  alien  enemy,  real  estate  within  its  own 
dominion  would  be  the  last. 

No  distinction  can  be  properly  or  legally  made  be- 
tween the  different  kinds  of  enemy  property,  whether 
real,  personal,  or  mixed,  so  far  as  regards  their  liability 
to  confiscation  by  the  war  power.  Lands,  money, 
slaves,  debts,  may  and  have  been  subject  to  this  lia- 
bility. The  methods  of  appropriating  and  holding 
them  are  different  —  the  result  is  the  same.  And, 
considering  the  foundation  of  the  right,  the  object  for 
which  it  is  to  be  exercised,  and  the  effects  resulting 
from  it,  there  is  nothing  in  law,  or  in  reason,  which 
would  indicate  why  one  can  and  the  other  cannot  be 
taken  away  from  the  enemy. 

In  Broivn  v.  United  States,  8  Cranch,  p.  123,  the  Supreme 
Court  of  the  United  States  say,  — 

"  Respecting  the  power  of  government,  no  doubt  is  entertained. 
That  war  gives  to  the  sovereign  the  full  right  to  take  the  persons  and 
confiscate  the  property  of  the  enemy,  wherever  found,  is  conceded. 
The  mitigations  of  this  rule,  which  the  humane  and  wise  policy  of 
modern  times  has  introduced  into  practice,  will  more  or  less  affect  the 
exercise  of  this  right,  but  cannot  impair  the  right  itself — that  remains 
undiminished ;  and  when  the  sovereign  authority  shall  choose  to  bring 
it  into  operation,  the  judicial  department  must  give  effect  to  its  will." 

"  It  may  be  considered,"  they  say,  "  as  the  opinion  of  all  who  have 
written  on  the^'us  belli,  that  war  gives  the  right  to  confiscate,"  &c. 


I  - 1  [TUTION    OP  THE    i  Mill'   sr\  1 1  9. 

1    uncellor  Kenl  says,  — 

■  v.  ;    :.  w:ir  i-  dul  >l  merely  a  war  between  toia 

overnmenl    in   their  political  characters!     Every 

man  i-.  in  judgment  of  law,  a  party  to  the  acta  of  his  own  govern- 

i   war  between  the   government   of  two  nations  is  a  war 

■  11  all  the  ii»li\  i  luala  of  the  one  and  all  the  indn  iduals  <>l'  which 

ition  is  composed.    Government  is  the  representative  of  the 

will  of  the  people,  and  acts  for  the  whoL  This  is  the  theory 

of  all  governments,  and  the  best  writers  on  the  law  of  nations  concur 

in  ili«-  doctrine,  that   when  the  sovereign    of  a  state  declare-    war 

ither  sovereign,  it   implies  that    the  whole  nation  declares 

nd  that  all  the  subj<  eta  of  the  one  are  enemies  t<>  all  the  subjects 

aportant  consequences  concerning  the  obligations  of  sul)- 

I  ducible  from  this  principle.     When  hostilities  have  com- 

1.  the  first   objects  that   present  themselves  for  detention  ami 

capture  are  tin-  i  ersons  and  property  of  the  enemy  found  within  the. 

i  the  breaking  oul  of  war.     According  t<>  strict  authority,  :i 

has  a  right  t<>  deal  as  an  enemy  with  persons  and  property  so 

within  its  power,  and  to  confiscate  the  property  and  detain  the 

-  a-  prisoners  of  v. 

thus  see,  that  by  the  law  of  nations,  by  the  prac- 
tice of  our  own  States,  by  the  decisions  of  courts,  by 
the  highest  authority  of  legal  writers,  and  by  the  deduc- 
m,  there  can  be  no  question  of  the  consti- 
tutional right  of  confiscation  of  enemy  real  estate  of 
which  we  may  gain  possession.  And  the  legal  pre- 
sumption that  real  estate  situated  in  rebellious  districts 
temy  property,  would  seem  to  he  as  well  founded 
as  it  is  in  case  of  personal  property."!" 

Jt  is  for  the  government  to  decide  how  it  shall 
it-  belligerent  right  of  confiscation.  The  num- 
of   slaveholders    in    the    rebellious    States,   who 

•  1  Ke.it'^  Com.,  p.  ■'>■'>.     See  also  Grotius,  B.  III.  eh.  3,  sect.  9;  ch.  4, 
Beet.  8.    Burlamaqui,  Part  IV.  ch.  -1,  sect.  20.    Vattel,  li.  III.  eh.  »,  sect.  70. 
7. 


WAR    POWERS    OF    CONGRESS.  65 

are  the  principal  land  owners  in  that  region,  and 
who  are  the  chief  authors  and  supporters  of  this  rebel- 
lion, constitute,  all  told,  less  than  one  in  one  hundred 
and  twenty  eight  of  the  people  of  the  United  States, 
and  less  than  one  fiftieth  part  of  the  inhabitants  of  their 
own  districts,  being  far  less  in  proportion  to  the 
whole  population  of  the  country  than  the  old  tories 
in  the  time  of  the   revolution  were  to  the  colonists* 

*  In  confirmation  of  these  views  of  the  War  Powers  of  Congress,  see  the 
chapter  on  the  "War  Powers  of  the  President,  and  Notes  thereon. 

9 


NSTITl  HON    OF    nil:   i  NIT]  I 


c  II  \  PT  BR    III. 

POWER    OF  THE    PR]  I  0    EMANCIPATE   S1AVE8. 

Tin  power  of  the  President,  aa  commander-in-chief 
of  the  army  and  navy  of  the  United  States,  when  in 
.1  Bervice,  to  emancipate  the  slaves  of  any  belli- 
,t  section  of  ilif  country,  if  such  a  measure  be- 
comes necessary  to  save  the  government  from  destruc- 
tion, is  not,  it  is  presumed,  denied  by  any  respectable 
authorit; 

WHY    THE    POWEB   EXISTS. 

The  liberation  of  slaves  is  looked  upon  as  a  means  of 
embarrassing  or  weakening  the  enemy,  or  of  strength- 
ening; the   military   power  of  our  army.     If  slaves  be 
contraband   of  war,   on    the    ground    that 
they  may  be  used  by  their  masters  to  aid  in  prose- 
cuting war,  as  employees  upon  military  works,  or  as 
-  furnishing  by  their  industry  the  means  of  car- 
rying on  hostilities;  or  if  they  be  treated  as,  in  law, 
belligerents,    following    the    legal    condition    of    their 
owners;  or  it'  they  be  deemed  loyal  subjects  having  a 
just  claim  upon    the    government  to   be   released   from 
their  obligations  to  give  aid  and  service  to  disloyal  and 
belligerent  masters,  in  order  that  they  may  be  free  to 
rm  their  higher  duty  of  allegiance  and  loyalty  to 
the  United  Mate- ;  or  if  they  be  regarded  as  subjects 

•  It  has  been  shown  in  a  previous  chapter  that  the  government  has  u 
right  to  treat  rebels  either  as  belligerents  or  as  subjects,  and  to  subject 
them  to  the  severities  oi'  international  belligerent  law. 


WAR   POWER    OF    THE   PRESIDENT.  67 

of  the  United  States,  liable  to  do  military  duty  ;  or  if 
they  be  made  citizens  of  the  United  States,  and  soldiers ; 
or  if  the  authority  of  the  masters  over  their  slaves  is 
the  means  of  aiding  and  comforting  the  enemy,  or  of 
throwing  impediments  in  the  way  of  the  government, 
or  depriving  it  of  such  aid  and  assistance  in  successful 
prosecution  of  the  war,  as  slaves  would  and  could 
afford,  if  released  from  the  control  of  the  enemy,  —  or 
if  releasing  the  slaves  would  embarrass  the  enemy,  and 
make  it  more  difficult  for  them  to  collect  and  maintain 
large  armies ;  in  either  of  these  cases,  the  taking  away 
of  these  slaves  from  the  "  aid  and  service "  of  the 
enemy,  and  putting  them  to  the  aid  and  service  of  the 
United  States,  is  justifiable  as  an  act  of  war.  The 
ordinary  way  of  depriving  the  enemy  of  slaves  is  by 
declaring  emancipation. 

THE   PRESIDENT    IS  THE  SOLE  JUDGE. 

"It  belongs  exclusively  to  the  President  to  judge 
when  the  exigency  arises  in  which  he  has  authority, 
under  the  constitution,  to  call  forth  the  militia,  and  his 
decision  is  conclusive  on  all  other  persons."  * 

The  constitution  confers  on  the  Executive,  when  in 
actual  w7ar,  full  belligerent  powers.  The  emancipation 
of  enemy's  slaves  is  a  belligerent  right.  It  belongs 
exclusively  to  the  President,  as  commander-in-chief,  to 
judge  whether  he  shall  exercise  his  belligerent  right  to 
emancipate  slaves  in  those  parts  of  the  country  which 
are  in  rebellion.  If  exercised  in  fact,  and  while  the 
war  lasts,  his  act  of  emancipation  is  conclusive  and 


*  Such  is  the  language  of  Chief  Justice  Taney,  in  delivering  the  opinion 
of  the  Supreme  Court,  in  Martin  v.  Mott,  12  Wheaton,  19. 


CONSTITl  HOH  OF  THE  UNITED  BTATE8. 

binding  forevt  c  on  all  the  departments  of  government, 
and  on  all  persona  whatsoever. 

-    OF    nil:    PRESIDENT    WOT   [^CONSISTENT   Willi    POWERS    OF 

.  ONGRESS     i"   EM  w  ir  \  n:   BL  w  ES. 

Tin'  right  of  tli<'  Executive  to  strike  this  blow  against 
his  enemy  does  not  deprive  Congress  of  the  concur- 
rent right  <>r  duly  to  emancipate  enemy's  slaves,  if  in 
their j  !  a  civil  act  lor  that  purpose  is  required  by 

public  welfare  and  common  defence,  lor  the  purpose  of 
aiding  and  giving  effect  to  such  war  measures  as  the 
commander-in-chief  may  adopt. 

The  military  authority  of  the  President  is  not  incom- 
patible  with  the  peace  or  war  powers  of  Congress;  hut 
both  coexist,  and  may  he  exercised  upon  the  same  suh- 
ject  Thus,  when  the  army  captures  a  regiment  of 
soldiers,  the  legislature  may  pass  laws  relating  to  the 
captives.  So  may  Congress  destroy  slavery  by  abolish- 
ing the  laws  which  sustain  it,  while  the  commander  of 
the  army  may  destroy  it  hy  capture  of  slaves,  by 
proclamation,  or  by  other  means. 

I-    LIBERATION  OF   ENEMY'S  SLAVES   A  BELLIGERENT  RIGHT? 

This  is  the  chief  inquiry  on  this  branch  of  the  sub- 
To  answer  it  we  must  appeal  to  the  law  of 
nation-,  and  learn  whether  there  is  any  commanding 
authority  which  forbids  the  use  of  an  engine  so  power- 
ful and  so  formidable  —  an  engine  which  may  grind  to 
powder  the  disloyalty  of  rebels  in  arms,  while  it  clears 
tin-  avenue  to  freedom  for  four  millions  of  Americans. 
It  is  only  the  law  of  nations  that  can  decide  this  ques- 
tion, because  the  constitution,  having  given  authority 
government  to  make  war,  has  placed  no  limit  what- 


WAR   POWER    OF    THE    PRESIDENT.  69 

ever  to  the  war  powers.  There  is,  therefore,  no  legal 
control  over  the  war  powers  except  the  law  of  nations, 
and  no  moral  control  except  the  usage  of  modern  civil- 
ized belligerents. 

THE    LAW   OF    NATIONS    SANCTIONS    EMANCIPATION    OF    ENEMY'S 
SLAVES. 

It  is  in  accordance  with  the  law  of  nations  and  with 
the  practice  of  civilized  belligerents  in  modern  times, 
to  liberate  enemy's  slaves  in  time  of  war  by  military 
power.  In  the  revolutionary  war,  England  exercised 
that  unquestioned  right  by  not  less  than  three  of  her 
military  commanders  —  Sir  Henry  Clinton,  Lord  Dun- 
more,  and  Lord  Cornwallis.  That  General  Washington 
recognized  and  feared  Lord  Dunmore's  appeal  to  the 
slaves,  is  shown  by  his  letter  on  that  subject. 

"  His  strength,"  said  Washington,  "  will  increase  as  a  snow-ball  by 
rolling  faster  and  faster,  if  some  expedient  cannot  be  hit  upon  to  con- 
vince the  slaves  and  servants  of  the  impotency  of  his  designs." 

The  rigdit  to  call  the  slaves  of  colonists  to  the  aid  of 
the  British  arms  was  expressly  admitted  by  Jefferson, 
in  his  letter  to  Dr.  Gordon.  In  writing  of  the  injury 
done  to  his  estates  by  Cornwallis,  he  uses  the  following 
language : — 

"  He  destroyed  all  my  growing  crops  and  tobacco ;  he  burned  all 
my  barns,  containing  the  same  articles  of  last  year.  Having  first  taken 
what  corn  he  wanted,  he  used,  as  was  to  be  expected,  all  my  stock  of 
cattle,  sheep,  and  hogs,  for  the  sustenance  of  his  army,  and  carried  off 
all  the  horses  capable  of  service.  He  carried  off  also  about  thirty 
slaves.  Had  this  been  to  give  them  freedom,  he  would  have  done  rigid. 
.  .  .  From  an  estimate  made  at  the  time  on  the  best  information  I 
could  collect,  I  suppose  the  State  of  Virginia  lost  under  Lord  Corn- 
wallis's  hands,  that  year,  about  thirty  thousand  slaves." 


nn  HON    OF    I'm:    i  NTTED   BTATE8. 

1  B    tain,  for  ili«'  Becond   time,  \\±v{\  the  same 

right  againsl  as  in  the  war  of  L812.  Her  naval  and 
mil i tar v  commanders  invited  the  Blaves,  by  public  proc- 
lamations, to  repair  to  their  standard,  promising  them 
freedom.*  The  Blaves  who  wenl  over  to  them  were  lib- 
erated, and  were  carried  away  contrary  to  the  express 
terms  of  the  treaty  of  Ghent,  in  which  it  was  stipulated 
thai  they  should  not  be  carried   away.     England  pre- 

I  to  become  liable  for  a  breach  of  the  treaty  rather 
than  to  break  faith  with  the  fugitives.  Indemnity  for 
this  violation  of  contracl   was  demanded  and  refused. 

question  was  referred  to  the  decision  of  the  Em- 
peror  of  Russia,  as  arbitrator,  who  decided  that  indem- 
nity should  be  paid  1>\  (lieat  Britain, not  because  Bhe 
had  violated  the  law  of  nations  in  emancipating  slaves, 
hut  because  Bhe  had  broken  the  terms  of  the  treaty. 

In  the  arguments  submitted  to  the  referee,  the  Brit- 
ish government  broadly  asserted  the  belligerent  right 
of  liberating  enemy's  slaves,  even  if  they  were  treated 
a-  private  property.  Mr.  Middleton  was  instructed  by 
Mr.  J.   Q.  Adams,  then,  in    1820,  Secretary  of  State,  to 

that  right,  and  to  present  reasons  for  that  denial. 
Bui  that  in  this  instance  he  acted  in  obedience  to  the 
instructions  of  the  President  and  cabinet,  and  against 

..n  opinions  on  the  law  of  nations,  is  shown  by  his 

quenl  statement  in  Congress  to  that  eiTect.f  The 
question  of  international  law  was  left  undecided  by  the 
Emperor;  but   the   assertion  of  England,  that  it  is  a 

*  I  t  A  .  :  r  ■  ini  -  Proclamation,  instigating  the  slaves  to  desen 
ter,  vol.  vi.  j).  212. 

t  "  It  was  utterly  against  my  judgment  and  wishes ;  but  I  was  obliged 
lo  submit,  and  prepared  the  requisite  despatches."  See  Congressional 
Globe,  XXVII.  Cong.,  2d  sess.,  1841-2;  vol.  ii.  p.  421. 


WAR    POWER    OF   THE   PRESIDENT.  71 

legitimate  exercise  of  belligerent  rights  to  liberate 
enemy's  slaves,  —  a  right  which  had  previously  been 
enforced  by  her  against  the  colonies,  and  by  France 
against  her,  and  again  by  her  against  the  United  States, 
—  was  entitled  to  great  weight,  as  a  reiterated  and 
authentic  reaffirmance  of  the  well-settled  doctrine. 

In  speeches  before  the  House  of  Representatives  on 
the  25th  of  May,  1836,  on  the  7th  of  June,  1841,  and 
on  the  14th  and  15th  of  April,  1842,  Mr.  Adams  ex- 
plained and  asserted  in  the  amplest  terms  the  powers 
of  Congress,  and  the  authority  of  the  President,  to  free 
enemy's  slaves,  as  a  legitimate  act  of  war.*  Thus  lead- 
ing statesmen  of  England  and  America  have  concurred 
in  the  opinion  that  emancipation  is  a  belligerent  right, 

St.  Domingo,  in  1793,  contained  more  than  five  hun- 
dred thousand  negroes,  with  many  mulattoes  and 
whites,  and  was  held  as  a  province  of  France.  Intes- 
tine commotions  had  raged  for  nearly  three  years  be- 
tween the  whites  and  mulattoes,  in  which  the  negroes 
had  remained  neutral.  The  Spaniards  having  ef- 
fected an  alliance  with  the  slaves  who  had  revolted 
in  1791,  invaded  the  island  and  occupied  several  im- 
portant military  points.  England,  also,  was  making  a 
treaty  with  the  planters  to  invade  the  country ;  and 
thus  the  possession  seemed  about  to  be  wrested  from 
France  by  the  efforts  of  one  or  the  other  of  its  two 
bitterest  foes.  One  thousand  French  soldiers,  a  few 
mulattoes  and  loyal  slaveholders,  were  all  the  force 
which  could  be  mustered  in  favor  of  the  government, 
for  the  protection  of  this  precious  island,  situated  so 
far  away  from  France. 

*  For  extracts  from  these  speeches,  see  postca. 


I     niE   UNITED    si". 

S  nthonax  and  Polverel,  the  French  commisbioners, 

on   the  -'Mh  oi'  Aii::.i-i.  L 793,  issued   a   proclamation, 

r  martial  law,  wherein  they  declared  all  the  Blaves 

and  thereby  brought  them  over  en  muss,   to  the 

or!  of  the  government     The  English  troops  landed 

threi  afterwards,  and  were  repulsed  principally 

by  the  >la\ e  army. 

the  Mi  of  February,  L794,  the  National  Conven- 
tion of  France  confirmed  the  acl  of  the  commissioners, 
and  also  abolished  shivery  in  the  other  French  colonics. 
[n  June,  L794,  Toussaini  L'Ouverture,  a  colored  man, 
admitted  by   military  critics   to  be  one  of  the  great 
rals  of  modern    times,  having    until    then  fought 
iii   favor  of  Spain,  broughl    his   army  of  five  thousand 
colored  troops   to    the  aid   of  France,  forced    entrance 
into  the  chief  city  of  the  island   in  which  the  French 
beleaguered,  relieved  his  allies,and  offered 
himself  and   his  army  to   the  service   of  that  govern- 
ment,  which    had    guaranteed   to   them   their  freedom. 
From    that    hour   the    fortunes    of  the   war    changed. 
The   English  were  expelled   from  the  island  in  1798; 
niards  also  gave  it  up;  and  in  1801  Toussaint 
proclaimed  the  republic  in  the  Spanish  portion  of  the 
island  which  had  been  ceded  to  France  by  the  treaty 
:    thus   extending    the   practical   operation    of 
decree  of  emancipation  over  the  whole  island,  and 
liberating  one   hundred  thousand   more   persons  who 
had  been  slaves  of  Spaniards. 

The  island  was  put  under  martial  law;  the  planters 

were  recalled  by  Toussaint,  and  permitted  to  hire  their 

former  slaves;  and   his  government  was  enforced  by 

military  power;   and   from   that  time  until  1802,  the 

grass  of  the  people  in  commerce,  industry,  and  gen- 


WAR   POWER    OF   THE   PRESIDENT.  73 

eral  prosperity  was  rapid  and  satisfactory.  But  in 
1802  the  influence  of  emigrant  planters,  and  of  the 
Empress  Josephine,  a  Creole  of  Martinique,  induced 
Napoleon  to  send  a  large  army  to  the  island,  to  rees- 
tablish the  slave  trade  and  slavery  in  all  the  other  isl- 
ands except  St.  Domingo,  with  the  design  of  restoring 
slavery  there  after  he  should  have  conquered  it.  But 
war,  sickness,  and  disasters  broke  up  his  forces,  and 
the  treacherous  Frenchmen  met  the  due  reward  of 
their  perfidy,  and  were,  in  1804,  totally  driven  from 
the  island.  The  independence  of  St.  Domingo  was 
actually  established  in  1804.  The  independence  of 
Hayti  was  recognized  by  the  United  States  in  1862. 

From  this  brief  outline  it  is  shown,  that  France 
recognizes  the  right,  under  martial  law,  to  emancipate 
the  slaves  of  an  enemy  —  having  asserted  and  exer- 
cised that  right  in  the  case  of  St.  Domingo.*  And  the 
slaves  thus  liberated  have  retained  their  liberty,  and 
compose,  at  this  day,  the  principal  population  of  a  gov- 
ernment who  have  entered  into  diplomatic  relations 
with  the  United  States. 

In  Colombia  slavery  was  abolished,  first  by  the 
Spanish  General  Morillo,  and  secondly  by  the  American 
General  Bolivar.  "  It  was  abolished,"  says  John  Quincy 
Adams,  "  by  virtue  of  a  military  command  given  at  the 
head  of  the  army,  and  its  abolition  continues  to  this 
day.  It  was  abolished  by  the  laws  of  war,  and  not  by 
the  municipal  enactments ;  the  power  was  exercised 

*  For  the  decree  of  the  French  Assemhly,  see  Choix  de  Rapports —  Opin- 
ions et  Discours  prononces  a  la  Tribune  Nationale  depuis  1789.  Paris,  1821, 
t.  xiv.  p.  42.3. —  See  Abolition  d'Esclavage,( Colonics  Francaises,) par  Augus* 
tin  Cochin.     Paris,  18G1.     Vol.  i.  pp.  14,  15,  &c. 

10 


7  1  N    OF   Till'    1  Mil  I' 

by  military  commanders,  under  Instructions,  <>f  course, 
from  their  respective  governments." 

\t  I  HOB1  n     LND  US  \<.\.  CONFIRM    Till:    RIGHT. 

I    may  happen  thai  when  belligerents  on  both  Bides 
hold  >l;i\  ber  will  deem  it  expedient,  through  feai 

of  retaliation,  to  Liberate  the  slaves  of  his  adversary; 
considerations  of  policy  do  qoI  affect  questions  of 
international  rights;  and  forbearance  to  exercise  ;i 
not  prove  its  non-existence.  While  no  au- 
thority among  eminent  ancient  writers  on  the  subject 
has  been  found  to  deny  the  right  of  emancipation,  the 
fact  that  England,  France.  Spain,  and  the  South  Amer- 
ican republics  have  actually  freed  the  slaves  of  their 
enemies,  conclusively  shows  that  the  law  and  practice 
of  modern  civilized  nations  sanction  that  right. 


BOW  FAB  THE  GOVERNMENT  OF  THE  DNITED  STATES  I  NDEB  FORMEB 
ADMINISTRATIONS  HAVE  SANCTIONED  THE  BELLIGERENT  BIGHT 
OK  EMANCIPATING  SLAVES  OF  LOYAL  ^ND  OF  DISLOYAL  CITIZENS. 

The  government  of  the  United  States,  in  1814,  recog- 
nized the  right  of  their  military  officers,  in  time  of  war, 
to  appropriate  to  public  use  the  slaves  of  loyal  citizens 
without  compensation  therefor;  also,  in  1836, the  right 
to  reward  slaves  who  have  performed  public  service. 
by  giving  freedom  to  them  and  to  their  families;  also. 
in  1838,  the  principle  that  slaves  of  loyal  citizens,  cap- 
'  in  war,  should  be  emancipated,  and  not  return'  d 
heir  masters;  and  that  slaves  escaping  to  the  army 
of  the  United  States  should  be  treated  as  prisoners  of 
war,  and  not  as  property  of  their  masters.  These  prop- 
ositions are  supported  by  the  cases  of  General  Jackson, 
General  Jessup,  General  Taylor,  and  General  Gaines. 


WAR   POWER    OF    THE   PRESIDENT.  75 

"In  December,  1814,"  says  a  distinguished  writer  and  speaker, 
"  General  Jackson  impressed  a  large  number  of  slaves  at  and  near  New 
Orleans,  and  set  them  at  work  erecting  defences,  behind  which  his  troops 
won  such  glory  on  the  8th  of  January,  1815.  The  masters  remon- 
strated. Jackson  disregarded  their  remonstrances,  and  kept  the  slaves 
at  work  until  many  of  them  were  killed  by  the  enemy's  shot ;  yet  his 
action  was  approved  by  Mr.  Madison,  the  cabinet,  and  by  the  Con- 
gress, which  has  ever  refused  to  pay  the  masters  for  their  losses.  In 
this  case,  the  masters  were  professedly  friends  to  the  government;  and 
yet  our  Presidents,  and  cabinets,  and  generals  have  not  hesitated  to 
emancipate  their  slaves,  whenever  in  time  of  war  it  was  supposed  to 
be  for  the  interest  of  the  country  to  do  so.  This  was  done  in  the 
exercise  of  the  war  power  to  which  Mr.  Adams  referred,  and  for 
which  he  had  the  most  abundant  authority." 

"In  1836  General  Jessup  engaged  several  fugitive  slaves  to  act 
as  guides  and  spies,  agreeing,  if  they  would  serve  the  government 
faithfully,  to  secure  to  them  the  freedom  of  themselves  and  families. 
They  fulfilled  their  engagement  in  good  faith.  The  general  gave  them 
their  freedom,  and  sent  them  to  the  west.  Mr.  Van  Buren's  admin- 
istration sanctioned  the  contract,  and  Mr.  Tyler's  administration  ap- 
proved the  proceeding  of  the  general  in  setting  the  slaves  and  their 
families  free." 

The  writer  above  quoted  says, — 

"  Louis,  the  slave  of  a  man  named  Pacheco,  betrayed  Major  Dade's 
battalion,  in  1836;  and  when  he  had  witnessed  their  massacre,  he 
joined  the  enemy.  Two  years  subsequently  he  was  captured.  Pa- 
checo claimed  him ;  General  Jessup  said  if  he  had  time,  he  would  try 
him  before  a  court  martial  and  hang  him,  but  would  not  deliver  him 
to  any  man.  He,  however,  sent  him  west,  and  the  fugitive  slave  be- 
came a  free  men.  General  Jessup  reported  his  action  to  the  War 
Department,  and  Mr.  Van  Buren,  then  President,  with  his  cabinet, 
approved  it.  Pacheco  then  appealed  to  Congress,  asking  that  body 
to  pay  him  for  the  loss  of  his  slave.  The  House  of  Representatives 
voted  against  the  bill,  which  was  rejected.  All  concurred  in  the  opin- 
ion that  General  Jessup  did  right  in  emancipating  the  slave,  instead 
of  returning  him  to  his  master. 

"  In  1838  General  Taylor  captured  a  number  of  negroes  said  to 
be  fugitive  slaves.  Citizens  of  Florida,  learning  what  had  been  done, 
immediately  gathered  around  his  camp,  intending  to  secure  the  slaves 


■nil  HON    OF    mi:    I  NITED   BTA 

1  Prom  them.     General  Taylor  told  them  thai  li<'  bad 

:-  but '  prisoners  of  war.1     The  claimants  then  desired  to 

.  in  order  i«>  determine  whether  he  was  holding  their 

l  i. m  warrior  replied  thai  no  man  should 

le  his  prisoners  for  Buch  :t  purpose  ;  and  be  ordered  them  to 

["his  a. •li.ni,  being  reported  to  the  War  1  >.  partment,  was  ap« 

l  ti    utive.     The  slaves,  however,  were  senl  west,  and 

-  many  fugitive   slaves  and   Indians  captured  in   Florida, 

rdered  to  be  sent  wesl  of  the  Mississippi.     Some  of  them 

claimed  at  New  Orleans  by  their  owner.-,  under  le^al  process. 

1  ?,  commander  of  the  military  district,  refused  to  deliver 

up  to  the   sheriff,  and  appeared   in  court  and  stated  his  own 

"His  grounds  of  defence  were,  'thai   these  men,  women,  and  chil- 

ured   in  war.  and   held   as  prisoners  of  war ;  that   as 

r  of  that  military  department  he  held  them  subjecl  only  to 

oational  Executive;   that   he  could   recognize  no 

other  power  in  time  of  war,  or  by  the  law-  of  war,  as  authorized  to 

prisoners  from  his  possession.     He  asserted  that  in  time  of  war 

I  i  Lligerents  as  much  as  their  masters.     The  Blave  men 

cultivate  the  earth,  and  supply  provisions.     The  women  cook  the  food 

and  nurse  the  sick,  and  contribute  to  the  maintenance  of  the  war,  often 

same  number  of  males.     The  Blave  children  equally 

ibute  whatever  they  air  able   to  the  support  of  the  war.     The 

aid,  can  inter  into  no  judicial  examination  of  the 

claim  of  one  man  to  the  bone  and  muscle  of  another,  as  property;  nor 

could  he,  as  a  military  officer,  know  what   the  laws  of  Florida  were 

in   maintaining  the  federal  government   by  force  of 

he  could  only  be  guided  by  the  law-  of  war,  and 

!  e  the  laws  of«ny  State,  they  must  yield  to  the  safety 

of  the-  federal  government.     He  sent  the  slaves  west,  and  thej  be- 

•  »* 

On  the  26th  of  May,  1836,  in  a  debate  in  the  House  of 

I  itativea  upon  the  joint  resolution  for  distributing 

istressed  fugitives  from  Indian  hostilities 

fence  of  Generi  1   G  i         may  he  found  in  House  Document 
if  the  2d  session  of  the  25th  C 


WAR    POWER    OF   THE   PRESIDENT.  77 

in  the   states    of  Alabama  and   Georgia,  John  Quincy 
Adams  expressed  the  following  opinions :  — 

"Sir,  in  the  authority  given  to  Congress  by  the  constitution  of 
the  United  States  to  declare  war,  all  the  powers  incidental  to  war 
are,  by  necessary  implication,  conferred  upon  the  government  of  the 
United  States.  Now,  the  powers  incidental  to  war  are  derived,  not 
from  their  internal  municipal  source,  but  from,  the  laws  and  usages  of 
nations. 

"  There  are,  then,  Mr.  Chairman,  in  the  authority  of  Congress  and 
of  the  Executive,  two  classes  of  powers,  altogether  different  in  their 
nature,  and  often  incompatible  with  each  other  —  the  war  power  and 
the  peace  poioer.  The  peace  power  is  limited  by  regulations  and  re- 
stricted by  provisions  prescribed  within  the  Constitution  itself.  The 
war  power  is  limited  only  by  the  laws  and  usages  of  nations.  This 
power  is  tremendous ;  it  is  strictly  constitutional,  but  it  breaks  down 
every  barrier  so  anxiously  erected  for  the  protection  of  liberty,  of  prop- 
erty, and  of  life.  This,  sir,  is  the  power  which  authorizes  you  to  pass 
the  resolution  now  before  you,  and,  in  my  opinion,  no  other." 

After  an  interruption,  Mr.  Adams  went  on  to  say,  — 

"  There  are,  indeed,  powers  of  peace  conferred  upon  Congress 
which  also  come  within  the  scope  and  jurisdiction  of  the  laws  of 
nations,  such  as  the  negotiation  of  treaties  of  amity  and  commerce, 
the  interchange  of  public  ministers  and  consuls,  and  all  the  personal 
and  social  intercourse  between  the  individual  inhabitants  of  the 
United  States  and  foreign  nations,  and  the  Indian  tribes,  which  require 
the  interposition  of  any  law.  But  the  powers  of  war  are  all  regulated 
by  the  laws  of  nations,  and  are  subject  to  no  other  limitation.  ...  It 
was  upon  this  principle  that  I  voted  against  the  resolution  reported. by 
the  slavery  committee,  '  that  Congress  possess  no  constitutional  author- 
ity to  interfere,  in  any  way,  with  the  institution  of  slavery  in  any  of 
the  States  of  this  confederacy,'  to  which  resolution  most  of  those  with 
whom  I  usually  concur,  and  even  my  own  colleagues  in  this  house, 
gave  their  assent.  I  do  not  admit  that  there  is,  even  among  the  peace 
powers  of  Congress,  no  such  authority  ;  but  in  war,  there  are  many  ways 
by  which  Congress  not  only  have  the  authority,  but  are  bound   to 

INTERFERE    WITH    THE    INSTITUTION    OP    SLAVERY    IN    THE    STATES. 

The  existing  law  prohibiting  the  importation  of  slaves  into  the  United 
States  from  foreign  countries  is  itself  an  interference  with  the  insti- 


v  !  isidered  h\  the  founders 

•  >,  in  w  hicfa  ii  was  stipulated 

l  liould  nol  interfere,  in  thai  way,  with  the  institution. 

•■  During  the  late  war  with  Greal   Britain,  the  military  and  naval 
that  nation  issued  proclamations  inviti  vea  to 

tandnrd,  with  promises  of  freedom  and  of  settlement  in 
B  itish  colonial  establishments.     This  surely  was  an  inter- 
e  with  the  institution  of  slavery  in  the  States.     By  the  treaty 
<  .p  at  Britian  stipulated  to  evacuate  all  the  forts  and  places 
in  the  United  State-,  without  carrying  away  any  slaves.     It'  the  gov- 
ernmi  I  States  had  no  power  to  interfere,  in  any  way, 

with  the  institution  of  slavery  in  the  State-,  they  would  not  have  had 
uthority  to  require  this  stipulation.     It  is  well  known  thai   this 
nl  was  nol  fulfilled  by  the  British  naval  and  military  com- 
.  that,  <>n  the  contrary,  they  did  carry  away  all  the  Blaves 
whom  they  had  induct  d  to  join  them,  and  that  the  Jlritislt  government 
•e  any  of  tin  in  in  their  masters;  that  a  claim 
of  indemnity  was  consequently  instituted  in  behalf  of  the  owners  of 
the  -lave-,  and  wa-  successfully  maintained.     All  that  series  of  trans- 
actions was  an  interference  by  Congress  with  the  institution  of  slavery 
in  the  Stat'--  in  one  way — in  the  way  of  protection  and  support      It 
wa-  by  tin'  institution  of  slavery  alone  that  the  restitution  of  slaves, 
■  i  by  proclamations  into  the  British  service,  could  be  claimed  as 
rty.     Bui  tor  the  institution  of  slavery,  the  British  commanders 
could  neither  have  allured  them  to  their  standard,  nor  restored    them 
otherwise  than  as  liberated  prisoners  of  war.     But  for  the  institution 
of  slavery,  there  could  have  been  no  stipulation  that  they  should  not 
rried  away  as  property,  nor  any  claim  of  indemnity  for  the  viola- 
igement." 

Mr.  Adams  goes  on  to  state  how  the  war  power  may 

-••■I  :  — 

••  Hut  the  war  pow<  r  "t'  Congress  over  the  institution  of  slavery  in 

•  far  more  extensive.     Suppose  the  case  of  a  servile 

iomplicated,  a-   to   some   extent    it    i-   even    now,  with  an   Indian 

war;  suppose  Congress  were  called  to  raise  armies,  to  supply  money 

from  ti 'if  whole  Union  to  s>'/>}>ress  a  servile  insurrection:  would  they 

no  authority  to  interfere  with  the  institution  of  slavery?    Thf 

•  a  sen  ile  war  may  he  disastrous :   ■  some  necessary  for  the 


WAR   POWER    OF    THE   PRESIDENT.  79 

master  of  the  slave  to  recognize  his  emancipation  by  a  treaty  of  peace  : 
can  it  for  an  instant  be  pretended  that  Congress,  in  such  a  contingency, 
would  have  no  authority  to  interfere  with  the  institution  of  slavery,  in 
any  -way,  in  the  States  ?  Why,  it  would  be  equivalent  to  saying  that 
Congress  have  no  constitutional  authority  to  make  peace.  I  suppose 
a  more  portentous  case,  certainly  within  the  bounds  of  possibility  —  I 
would  to  God  I  could  say,  not  within  the  bounds  of  probability  —  " 

"  Do  you  imagine,"  he  asks,  "  that  your  Congress  will  have  no  con- 
stitutional authority  to  interfere  with  the  institution  of  slavery,  in  any 
way,  in  the  States  of  this  confederacy?  Sir,  they  must  and  will  in- 
terfere with  it  —  perhaps  to  sustain  it  by  war,  perhaps  to  abolish  it  by 
treaties  of  peace ;  and  they  will  not  only  possess  the  constitutional 
power  so  to  interfere,  but  they  will  be  bound  in  duty  to  do  it,  by  the 
express  provisions  of  the  constitution  itself.  From  the  instant  that 
your  slaveholding  States  become  the  theatre  of  a  war,  civil,  servile,  or 
foreign  war,  from  that  instant  the  war  powers  of  Congress  extend  to  in- 
terference with  the  institution  of  slavery,  in  every  way  by  which  it  can 
be  interfered  with,  from  a  claim  of  indemnity  for  slaves  taken  or 
destroyed,  to  the  cession  of  States  burdened  with  slavery  to  a  foreign 
power." 

Extracts  from  the  speech  of  John  Quincy  Adams, 
delivered  in  the  United  States  House  of  Representa- 
tives, April  14th  and  15th,  1842,  on  war  with  Great 
Britain  and  Mexico  :  — 

"What  I  say  is  involuntary,  because  the  subject  has  been  brought 
into  the  house  from  another  quarter,  as  the  gentleman  himself  admits. 
I  would  leave  that  institution  to  the  exclusive  consideration  and  man- 
agement of  the  States  more  peculiarly  interested  in  it,  just  as  long  as 
they  can  keep  within  their  own  bounds.  So  far,  I  admit  that  Con- 
gress has  no  power  to  meddle  with  it.  As  long  as  they  do  not.  step 
out  of  their  own  bounds,  and  do  not  put  the  question  to  the  people 
of  the  United'  States,  whose  peace,  welfare,  and  happiness  are  all  at 
stake,  so  long  I  will  agree  to  leave  them  to  themselves.  But  when  a 
member  from  a  free  State  brings  forward  certain  resolutions,  for  which, 
instead  of  reasoning  to  disprove  his  positions,  you  vote  a  censure  upon 
him,  and  that  without  hearing,  it  is  quite  another  affair.  At  the  time 
this  was  done,  I  said  that,  as  far  as  I  could  understand  the  resolutions 
proposed   by  the  gentleman  from  Ohio,   (Mr.   Giddings,)  there  were 


PHI     i  NITED    BT  I  I 

read)  t"  vote,  and  Bome  which  I  must 

1  I  will  now  I'll  this  house,  my  constituents,  and  the 

■  mankind,  thai   ill"  resolution  against   which  I   would  have 

thai  in  \\  1 1 i < - h  he  declares  thai  what  arc  called  the  slave 

have  tli«'  exclusive  right  of  cousultatiou  ou   the  subject  of 

'.at  resolution  I  never  would  vot'-.  because  I  believe 

Dot  just,  and  does  not  contain  constitutional  doctrine.     I 

long  as  the  -lave  State-  are  able  to  Bustain  their  insti- 

abroad  or  calling  upon  other  parts  of  the  Onion  to 

aid  them  or  acton  the  subject,  so  long  I  will  consent  never  to  interfere. 

I  tin-,  and  1  repeal  it  ;  hut  it'  they  come  to  the  tier  States, 

.  Y    i  must  help  us  to  keep  down  our  -lave-,  you  musl 

iu  an  insurrection  ami  a  civil  war.  then  I  -ay  that  with  that  call 

lull  ami  plenary  power  to  this   house  ami  to  the  Senate  over  the 

It    i-   a    war   power.      I   say    it    i-   a    war  power;   and 

when  your  country  is  actually  in  war,  whether  it  he  a  war  of  invasion 

war  of  insurrection,  Congress  ha-  power  to  carry  on  the  war.  am! 

must  carry  it  on.  according  to  the   laws  of  war;  ami  by  the  laws  of 

war.  an  invaded  country  has  all   its  law-  and   municipal   institutions 

Bwepl  by  the  hoard,  and   martial  law  takes   the   place  of  them.      This 

power  in  Congn  3S  ha-,  perhaps,  never  been  called  intoexerci.se  under 

the  present  constitution  of  the  United  States.     Bui  when  the  laws  of 

ire  in  force,  what,  I  ask,  is   one  of  those  law-?      It    is   this:  that 

when  a  country  i-  invaded,  ami   two   hostile  armie     are  sel    in   martial 

array.  "nders  of  both  armies  have  power  to  emancipate  nil  the 

Hided  territory.     Nor  is  this  a  mere  theoretic  state- 

The  history  of  South  America  -hows  that  the  doctrine  has 

carried    into   practical  execution  within   the   last  thirty  years. 

;.    was  abolished  in  Colombia,  first,  by  the  Spanish  General 

Morillo,  ami,  secondly,  by  the  American  General   Bolivar.     It  was 

hi  d  by  virtue  of  a  military  command  given  at  the  head  of  the 

army,  ami  it-  abolition  continue-  to  be  law  to  this  day.    It  was  abolished 

.  and  not  by  the  municipal  enactment-  ;  the  power 

cercised   by  military  commander.-,  under  instructions,  of  course, 

their  res]  rernments.     And  here  I  recur  again  to  the 

exampl         G  neral  Jackson.     What  are  you  now  about  in  Congress  ? 

are  about  passing  a  grant  to  refund  to  General  Jack-on  the 

amount  of  a  certain  fine  imposed  upon  him  by  a  judge,  under  the  laws 

of  the  State  (,t'  Louisiana.     You  are  going  to  refund  him  the  money, 

with  interest  ;  and  tin-  you  are  going  to  do  because  i!e:  imposition  of 


WAR   POWER    OF   THE    PRESIDENT.  81 

the  fine  was  unjust.  And  why  was  it  unjust  ?  Because  General 
Jackson  was  acting  under  the  laws  of  war,  and  because  the  moment 
you  place  a  military  commander  in  a  district  which  is  the  theatre  of 
war,  the  laws  of  war  apply  to  that  district. 

*  *  ***** 

"  I  might  furnish  a  thousand  proofs  to  show  that  the  pretensions  of 
gentlemen  to  the  sanctity  of  their  municipal  institutions  under  a  state 
of  actual  invasion  and  of  actual  war,  whether  servile,  civil,  or  foreign, 
is  wholly  unfounded,  and  that  the  laws  of  war  do,  in  all  such  cases, 
take  the  precedence.  I  lay  this  down  as  the  law  of  nations.  I  say 
that  military  authority  takes,  for  the  time,  the  place  of  all  municipal 
institutions,  and  slaver y„among  the  rest ;  and  that,  under  that  state  of 
things,  so  far  from  its  being  true  that  the  States  where  slavery  exists 
have  the  exclusive  management  of  the  subject,  not  only  the  President 
of  the  United  States*  but  the  commander  of  the  army,  has  power  to 
order  the  universal  emancipation  of  the  slaves.  I  have  given  here 
more  in  detail  a  principle  which  I  have  asserted  on  this  floor  before 
now,  and  of  which  I  have  no  more  doubt  than  that  you,  sir,  occupy 
that  chair.  I  give  it  in  its  development,  in  order  that  any  gentleman 
from  any  part  of  the  Union  may,  if  he  thinks  proper,  deny  the  truth 
of  the  position,  and  may  maintain  his  denial;  not  by  indignation,  not 
by  passion  and  fury,  but  by  sound  and  sober  reasoning  from  the  laws 
of  nations  and  the  laws  of  war.  And  if  my  position  can  be  answered 
and  refuted,  I  shall  receive  the  refutation  with  pleasure ;  I  shall  be 
glad  to  listen  to  reason,  aside,  as  I  say,  from  indignation  and  passion. 
And  if,  by  the  force  of  reasoning,  my  understanding  can  be  convinced, 
I  here  pledge  myself  to  recant  what  I  have  asserted. 

"  Let  my  position  be  answered ;  let  me  be  told,  let  my  constituents  be 
told,  let  the  people  of  my  State  be  told,  —  a  State  whose  soil  tolerates 
not  the  foot  of  a  slave,  —  that  they  are  bound  by  the  constitution  to  a 
long  and  toilsome  march,  under  burning  summer  suns  and  a  deadly 
southern  clime,  for  the  suppression  of  a  servile  war ;  that  they  are 
bound  to  leave  their  bodies  to  rot  upon  the  sands  of  Carolina,  to  leave 
their  wives  widows  and  their  children  orphans  ;  that  those  who  cannot 
march  are  bound  to  pour  out  their  treasures  while  their  sons  or  brothers 
are  pouring  out  their  blood  to  suppress  a  servile,  combined  with  a  civil 
or  a  foreign  war ;  and  yet  that  there  exists  no  power  beyond  the  limits 
of  the  slave  State  where  such  war  is  raging  to  emancipate  the  slaves. 
I  say,  let  this  be  proved  —  I  am  open  to  conviction  ;  but  till  that  con- 
viction comes,  I  put  it  forth,  not  as  a  dictate  of  feeling,  but  as  a  settled 
maxim  of  the  laws  of  nations,  that,  in  such  a  case,  the  military  su per- 
il 


:  [ON     "I       Mil:     1   M  I'll' 

:  :  and  «'ii  this  account  I  should  \\-i\r  been  ol 

I  lin-t  one  of  tin*  resolutions  of  toy  excellent 

II  Mr.  G     lings,   or  should  at  least  have  required  that 
led  in  conformity  with  the  constitution  of  ili«'  I  United  States.' 

COJH  i  i  3ION. 

It  has  thus  been  proved,  that  by  the  la^  and  usage  of 

modern  civilized  oations,  confirmed  by  the  judgmenl  of 

eminent  statesmen,  and  by  the  former  practice  of  this 

rnment,  thai   the  President,  as  commander-in-chief) 

the  authority,  as  an   act  of  war,  to   liberate  the 

slaves  of  the  enemy,  that  the  United  States  have  in 

former  times  sanctioned  the  liberation  of  slaves  even 

I  citizens,  by  military  commanders,  in  time  of 

war.  without  compensation  therefor:  and  have  deemed 

slaves   captured   in  war    from   belligerent  subjects   as 

entitled  to  their  freedom.* 

-  OP  Tiir.  Pkbsedbnt.     It  is  not  intended  in  this 

war  powers  of  the  President.    They  are  princi- 

titution,  Art.  II.  Sect.  1,  CI.  1  and  7  ;  Sect.  2,  CI.  1 ; 

-  1  ;   and  in    Sect.  1,  CI.  1,  and    by  necessary  implication  in  Art.  I. 
.  CL  2.     By  Art.  11.  Sect.  2,  the  President  is  made  commander-in-chief 
of  the  army  and   navy  of  the  Unit  .  ami   of  the  militia  of  the  E 

States  when  called  into  the  service  of  the  United  States.     This  clause  gives 
ample  |  war  to  the  President,  when  the  army  and  navy  are  lawfully  in 

military  authority  is  supreme,  under  the  constitution, 
the  land  and  naval  forces,  and  treating  captures 
r  in  accordance  with  such  rules  as  Congress  may  have  passed 
Art.   I.   S  ct.   8,  CI.   11,  11.     Con^res>  may  effectually  con- 
trol the  mill  r,    by   refusing  to    vol  3,    or    to   raise    troops, 
oaent  of  the    President;  but  for  the  military  movements,  and 
1   to  overcome  the  enenp-, —  for  the  general  conduct  of  the 
le  to  and  controlled  by  no  other  department  of 
B                      uphold  the  constitution  and  enforci   the  laws,  and 

v  in  time  of  civil 

tallest  extent  that  may  be  consistent   with  the  performance  of  the 

military  duty  imposed  on  him.     The  effi  of  war,  in  changing  or  mod- 

iined  in  the  preceding  chapters. 

['  the  military  power  of  the  President  over  the  persons 

•  ince  from  the  seat   of  war  —  whether  he  or 

:.t  may  lawfully  order  the  arrest  of  citizens  in  loyal  states  on 

r|>of  that  they  are  eil  ig  the  enemy  —  or  that 

ries  of  rebels  sent  to  gain  information  for  their  use,  or 


WAR   POWER    OF   THE   PRESIDENT.  83 

to  discourage  enlistments  —  whether  martial  law  may  he  extended  over  such 
places  as  the  commander  deems  it  necessary  to  guard,  even  though  distant  from 
any  battle  field,  in  order  to  enable  him  to  prosecute  the  war  effectually  — 
whether  the  writ  of  habeas  corpus  may  be  suspended  as  to  persons  under  mili- 
tary arrest,  by  the  President,  or  only  by  Congress,  (on  which  point  judges  of 
the  United  States  courts  disagree)  ;  whether,  in  time  of  war,  all  citizens  are  liable 
to  military  arrest,  on  reasonable  proof  of  their  aiding  or  abetting  the  enemy  — 
or  whether  they  are  entitled  to  practise  treason  until  indicted  by  some  grand  jury 
—  thus,  for  example,  whether  Jefferson  Davis,  or  General  Lee,  if  found  in  Bos- 
ton, could  be  arrested  by  military  authority  and  sent  to  Fort  Warren  ?  "Whether, 
in  the  midst  of  wide-spread  and  terrific  war,  those  persons  who  violate  the  laws 
of  war  and  the  laws  of  peace,  traitors,  spies,  emissaries,  brigands,  bush-whackers, 
guerrillas,  persons  in  the  free  States  supplying  arms  and  ammunition  to  the 
enemy,  must  all  be  proceeded  against  by  civil  tribunals  only,  under  due  forms 
and  precedents  of  law,  by  the  tardy  and  ineffectual  machinery  of  arrests  by 
marshals,  (who  can  rarely  have  means  of  apprehending  them,)  and  of  grand 
juries,  (who  meet  twice  a  year,  and  could  seldom  if  ever  seasonably  secure  the 
evidence  on  which  to  indict  them)  ?  Whether  government  is  not  entitled  by 
military  power  to  prevent  the  traitors  and  spies,  by  arrest  and  imprisonment, 
from  doing  the  intended  mischiei7"as  well  asTcTpunish  them  after  it  is  done  ? 
Whether  war  can  be  carried  on  successfully,  without  the  power  to  save  the 
army  and  navy  from  being  betrayed  and  destroyed,  by  depriving  any  citizen 
temporarily  of  the  power  of  acting  as  an  enemy,  whenever  there  is  reasonable 
cause  to  suspect  him  of  being  one  ?  Whether  these  and  similar  proceedings 
are,  or  are  not,  in  violation  of  any  civil  rights  of  citizens  under  the  constitution, 
are  questions  to  which  the  answers  depend  on  the  construction  given  to  the  war 
powers  of  the  Executive.  Whatever  any  commander-in-chief,  in  accordance- 
with  the  usual  practice  of  carrying  on  war  among  civilized  nations,  may  order 
his  army  and  navy  to  do,  is  within  the  power  of  the  President  to  order  and  to 
execute,  because  the  constitution,  in  express  terms,  gives  him  the  supreme 
command  of  both.  If  he  makes  war  upon  a  foreign  nation,  he  should  be  gov- 
erned by  the  law  of  nations  ;  if  lawfully  engaged  in  civil  war,  he  may  treat  his 
enemies  as  subjects  and  as  belligerents. 

The  constitution  provides  that  the  government  and  regulation  of  the  land 
and  naval  forces,  and  the  treatment  of  captures,  should  be  according  to  law; 
but  it  imposes,  in  express  terms,  no  other  qualification  of  the  war  power  of  the 
President.  It  does  not  prescribe  any  territorial  limits,  within  the  United 
States,  to  which  his  military  operations  shall  be  restricted  ;  nor  to  which  the 
picket  guard,  or  military  guards  (sometimes  called  provost  marshals)  shall  be 
confined.  It  does  not  exempt  any  person  making  war  upon  the  country,  or 
aiding  and  comforting  the  enemy,  from  being  captxired,  or  arrested,  wherever 
he  may  be  found,  whether  within  or  out  of  the  lines  of  any  division  of  the  army. 
It  does  not  provide  that  public  enemies,  or  their  abettors,  shall  find  safe  asylum 
in  any  part  of  the  United  States  where  military  power  can  reach  them.  It 
requires  the  President,  as  an  executive  magistrate,  in  time  of  peace  to  see  that 
the  laws  existing  in  time  of  peace  are  faithfully  executed  —  and  as  commander- 
in-chief,  in  time  of  war,  to  see  that  the  laws  of  war  are  executed.  In  doing  both 
duties  he  is  strictly  obeying  the  constitution. 


NSTIT1  HON    OF    Till:    UNIT]  D   81  ! 


I    HAP  T  E  R    1  V. 

BE  M  1AIMU.K. 

nsB  the  authority  of  government  shall  have  been 
tablished    over    the    rebellious   districts,  measures 
may  be  taken  to  punish  individual  criminals. 

The  popular  sense  of  outraged  justice  will  embody 
itself  in  more  ot  less  stringent  legislation  against 
those  who  have  brought  civil  war  upon  us.  It  would 
irprising  if  extreme  severity  were  not  demanded 
by  the  supporters  of  the  Onion  in  all  sections  of  the 
country.  Nothing  short  of  a  general  bill  of  attainder, 
it  is  presumed,  will  full}7  satisfy  some  of  the  loyal 
people  of  the  slave  States. 

BILLS  OF  ATT  wxnia:  i\   ENGLAND. 

By  these  statutes,  famous  in  English  political  his- 
tory, tyrannical  governments  have  usually  inflicted 
their  severest  revenge  upon  traitors.  The  irresistible 
power  of  law  has  hern  evoked  to  annihilate  the  crimi- 
nal, as  a  citizen  of  that  State  whose  majesty  he  had 
offended,  and  whose  existence  he  had  assailed.  His 
terminated  with  horrid  tortures;  his  blood  was 
corrupted,  and  his  estates  were  forfeited  to  the  king. 
While  -till  living,  he  was  deemed,  in  the  language  of 
the  law,  as  !  \mV 

PUNISHMENT   BY   ATTAINDER. 

The  refined  cruelty  which  characterized  the  punish- 
ment of  treason,  according  to  the  common  law  of*  Eng- 


ATTAINDER.  85 

land,  would  have  been  discreditable  to  the  barbarism 
of  North  American  savages  in  the  time  of  the  Georges, 
and  has  since  been  equalled  only  by  some  specimens  of 
chivalry  in  the  secession  army.  The  mode  of  executing 
these  unfortunate  political  offenders  was  this  :  — 

1.  The  culprit  was  required  to  be  dragged  on  the 
ground  or  over  the  pavement  to  the  gallows ;  he  could 
not  be  allowed,  by  law,  to  walk  or  ride.  Blackstone 
says,  that  by  connivance,  at  last  ripened  into  law,  he  was 
allowed  to  be  dragged  upon  a  hurdle,  to  prevent  the 
extreme  torment  of  being  dragged  on  the  ground  or 
pavement. 

2.  To  be  hanged  by  the  neck,  and  then  cut  down 
alive. 

3.  His  entrails  to  be  taken  out  and  burned  while  he 
was  yet  alive. 

4.  His  head  to  be  cut  off! 

5.  His  body  to  be  divided  into  four  parts. 

6.  His  head  and  quarters  to  be  at  the  king's  dis- 
posal.* 

Blackstone  informs  us  that  these  directions  were,  in 
former  times,  literally  and  studiously  executed.  Judge 
Story  observes,  they  "  indicate  at  once  a  savage  and 
ferocious  spirit,  and  a  degrading  subserviency  to  royal 
resentments,  real  or  supposed."  ~\ 

ATTAINDERS   PROHIBITED  AS   INCONSISTENT  "WITH    CONSTITUTIONAL 

LIBERTY. 

Bills  of  attainder  struck  at  the  root  of  all  civil  rights 
and  political  liberty.     To  declare  single  individuals,  or 

*  4  Bla.  Com.  92. 

f  Lord  Coke   undertakes  to  justify  the  severity  of  this  punishment  by 
examples  drawn  from  Scripture. 


.  I  v-mi  [TON    OF   THE    i  OTTED   BTATES. 

:i  large  class  of  persons,  criminals,  in  time  of  peace, 
merely  upon  the  ground  thai  they  entertained  certain 
opinions  upon  questions  of  ohurch  or  state;  to  do  this 
1»\  ac1  of  Parliament,  without  a  hearing,  or  after  the 
death  of  the  alleged  offenderj  to  involve  the  innocenl 
with  the  guilty  in  indiscriminate  punishment,  —  was  an 
upon  tin'  rights  of  the  people  nol  to  be  toler- 
ated in  our  constitution  as  one  of  the  powers  of  gov- 
ernment 

i'.:i  LS    OF    \  li  WINDER    ABOLISHED. 

The  constitution  provides  expressly,  *  that "  no  bill 
of  attainder.  <>r  ex  post  facto  law,  shall  be  passed  byCon- 
-:  and  thai  no  State  shall  pass  any  bill  of  attainder, 
'aoto  law,  or  law  impairing  the  obligation  of  con- 
tracts." v     There  is,  therefore,  no  power  in  this  country 
to  pass  any  bill  of  attainder. 

WHAT   IS   A   BILL  OF  ATTAINDER? 

Wherein  does  it  differ  from  other  statutes  for  the 
punishment  of  criminals  ? 

A  "bill  of  attainder.*'  in  the  technical  language  of 

the  law,  is  a   statute   by  which  the  offender  becomes 

u  attainted,"  and  is  liable  to  punishment  without,  having 

i  convicted  of  any  crime  in  the  ordinary  course  of 

judicial  proceedings. 

If  a  person  be  expressly  named  in  the  bill,  or  comes 
within  the  terms  thereof,  he  is  liable  to  punishment. 
The  legislature  undertakes  to  pronounce  upon  the  guilt 
of  the  accused  party.  He  is  entitled  to  no  hearing, 
when  living,  and  may  be  pronounced  guilty  when  ab- 

•    Art.  I.  Sect.  9.  t  Art.  I.  Sect.  10. 


ATTAINDER.  87 

sent  from  th%  country,  or  even  long  after  his  death. 
Lord  Coke  says  that  the  reigning  monarch  of  England, 
who  was  slain  at  Bosworth,  is  said  to  have  been  at- 
tainted by  act  of  Parliament  a  few  months  after  his 
death,  notwithstanding  the  absurdity  of  deeming  him 
at  once  in  possession  of  a  throne  and  a  traitor.* 

A  question  has  been  raised,  whether  any  statute  can 
be  deemed  a  bill  of  attainder  if  it  inflicts  a  degree  of 
punishment  less  than  that  of  death  ? 

In  technical  law,  statutes  were  called  bills  of  attainder 
only  when  they  inflicted  the  penalty  of  death  or  out- 
lawry ;  while  statutes  which  inflicted  only  forfeitures, 
fines,  imprisonments,  and  similar  punishments,  were 
called  bills  of  "  pains  and  penalties."  This  distinction 
was  practically  observed  in  the  legislation  of  England. 
No  bill  of  attainder  can  probably  be  found  which  did 
not  contain  the  marked  feature  of  the  death  penalty, 
or  the  penalty  of  outlawry,  which  was  considered  as 
equivalent  to  a  judgment  of  death.  Judgment  of  out- 
lawry on  a  capital  crime,  pronounced  for  absconding  or 
fleeing  from  justice,  was  founded  on  that  which  was  in 
law  deemed  a  tacit  confession  of  guilt,  j* 

BILLS  OF  PAINS  AND  PENALTIES, 

It  has  been  said  that  within  the  sense  of  the  consti- 
tution, bills  of  attainder  include  bills  of  pains  and 
penalties ;  and  this  view  seemed  to  derive  support  from 
a  remark  of  a  judge  of  the  Supreme  Court.  "  A  bill  of 
attainder  may  affect  the  life  of  an  individual,  or  may 
confiscate  his  property,  or  both."  J 

*  See  Story  on  the  Constitution,  B.  III.  Sect.  678. 

t  Standf.  PI.  Co.  44,  122,  182.  J  Fletcher  v.  Peck,  6  Cranch,  R. 


.  0N8TITT  H"N    OP    mi:    I  Mil  D   B1  vu  B. 

-  true  thai  a  bill  of  attainder  ma)  affed  the  life 
of  an  individual;  but  it'  the  individual  attainted  were 
.load  before  the  passage  of  the  act,  as  was  the  case  with 
Richard  III.,  the  bill  could  uot  affecl  his  life  j  or  if  a 
Mil  of  attainder  upon  outlawry  were  pass  d  against 
persons  beyond  seas,  the  life  of  the  party  would  uol  be 
in  fact  affected,  although  the  outlawry  was  equivalent 
in  t!  :'  the  law  to  civil  death.     There  is  nothing 

m  this  dictum   inconsistent  with   the  ancient  and  ac- 
knowledged distinction  between  bills  of  attainder  and 

■ 

bills  of  pains  and  penalties;  nothing  which  would  au- 
thorize the  enlargemenl  of  the  technical  meaning  of 
the  words;  nothing  which  -hows  that  Judge  Marshall 
deemed  that  bills  of  attainder  included  bills  of  pains 
and  penalties  within  the  sense  of  the  constitution. 
This  dictum  is  ({noted  by  Judge  Story,*  who  supposed 
its  meaning  went  beyond  that  which  is  now  attributed 
to  it.  l>ut  he  docs  not  appear  to  sanction  such  a  view 
of  the  law.  This  is  the  only  authority  to  which  he 
and  he  introduces  the  proposed  construction 
of  this  clause  by  language  which  is  used  by  lawyers 
who  have  little  confidence  in  the  result  which  the  au- 
thority indicate-.  \i/..  -it  seems."  No  case  has  been 
decided  by  the  Supreme  Court  of  the  United  States 
which  shows  that  "bills  of  attainder,"  within  the  sense 
of  th.'  constitution,  include  any  other  statutes  than 
•  which  were  technically  so  considered  according 
to  the  law  of  England. 

I.V    POST    I   \'   l"    LAWS    PROHIBITED.     BILLS  OF    PAINS    AND    PENAL- 
TIBS,    A-    WELL   AS   ATTAINDERS,    DNCONSTIT1   DIONAL. 

It  does  not   seem   important  whether  the  one  or  the 
other  construction  be   put   upon   the  language  of  this 

•  Com.  Const.  III.  Ch.  32,  Sect.  ?,. 


ATTAINDER.  89 

clause,  nor  whether  bills  of  pains  and  penalties  be  or  be 
not  included  within  the  prohibition ;  for  Congress  can 
pass  no  ex  pod  facto  law ;  and  it  was  one  of  the  invari- 
able characteristics  of  bills  of  attainder,  and  of  bills  of 
pains  and  penalties,  that  they  were  passed  for  the  pun- 
ishment of  supposed  crimes  which  had  been  committed 
before  the  acts  were  passed. 

The  clause  prohibiting  Congress  from  passing  any 
ex  post  facto  law  would  doubtless  have  prevented  their 
passing  any  bill  of  attainder ;  but  this  prohibition  was 
inserted  from  greater  caution,  and  to  prevent  the 
exercise  of  constructive  powers  against  political  of- 
fenders. No  usurpation  of  authority  in  the  worst 
days  of  English  tyranny  was  more  detested  by  the 
framers  of  our  constitution  than  that  which  attempted 
to  ride  over  the  rights  of  Englishmen  to  gratify  royal 
revenge  against  the  friends  of  free  government.  Hence 
in  that  respect  they  shut  down  the  gate  upon  this  sov- 
ereign power  of  government.  They  forbade  any  pun- 
ishment, under  any  form,  for  crime  not  against  some 
standing  law,  which  had  been  enacted  before  the  time 
of  its  commission.  They  prevented  Congress  from  pass- 
ing any  attainder  laws,  whereby  the  accused  might  be 
deprived  of  his  life,  or  his  estate,  or  both,  without  trial 
by  jury,  and  by  his  political  enemies;  and  whereby 
also  his  relatives  would  suffer  equally  with  himself. 

ATTAINDERS  IN  THE  COLONIES  AND  STATES. 

Bills  in  the  nature  of  bills  of  attainder  were  familiar 
to  our  ancestors  in  most  of  the  colonies  and  in  the 
States  which  subsequently  formed  the  Union.  And 
several  of  these  acts  of  attainder  have  been  pronounced 
valid  by  the  highest  courts  in  these  States.  By  the 
12 


Mill   HON    OP    Till:    l  M1TI'    -I'M  I  B. 

State  of  New  York.  October  22,  ITT.1*,  the 
real  ami  personal  propert}  of  persons  adhering  to  the 
enemy  was  forfeited  t<>  the  State  ;  and  this  acl  lias  been 
held  valid,*  ami  proceedings  under  acts  of  attainder 

as  Hie  court  held,  to  be  construed  according  to 
the  nil.--  in  cases  of  attainder,  and  not  by  the  ordinary 
course  of  judicial  proceedings ; •(■  and  thee  laws  ap- 
plied to  persons  who  were  dead  at  the  time  of  the  prO- 

••  Bills  of  attainder,"  says  the  learned  judge,  (in  2 
Johnson's    Cases,)   "have   always    been   construed    in 

this  resped  with  more  latitude  than  ordinary  judicial 
.  for  the  purpose  of  giving  them  more  cer- 
tain effectj  and  that  the  intent  of  tin-  Legislature  may 
prevail"  u  They  are  extraordinary  acts  of  sovereignty, 
founded  on  public  policy  §  and  the  peace  of  the  com- 
munity." ••  The  attainted  person,"  says  Sir  Matthew 
Sale,  ••  is  guilty  of  the  execrable  murder  of  the  king." 
The  act  of  New  York,  October  22,  1779,  attainted. 
among  other-.  Thomas  Jones  of  the  offence  of  adhering 
to  the  enemies  of  the  State.  This  was  a  specific  offence, 
and  was  not  declared  or  understood  to  amount  to  trea- 
son, because  many  of  the  persons  attainted  had  never 
lance  to  the  State.  || 
Bills  of  attainder  were  passed  not  only  in  New  York, 
but  in  Beveral  other  colonics  and  States,  inflicting  the 
penalties  of  attainder  for  other  crimes  than  treason, 
actual  or  constructive.  And  the  harsh  operation  of 
such  law-,  their  injustice,  and  their  liability  to  be  abused 

,  2  Jol      .  Cas.  236,  decided  in  April,  1801. 
t  Ja  .  3ands,  2  Johns.  267. 

\  Jackson  v.  Stokes,  '■>  Johns.  15.  §  Foster,  83,  84. 

|  Jackson  v.  Coffin,  2  Johns.  K.  260. 


ATTAINDER.  91 

in  times  of  public  excitement,  were  understood  b\  the  se 
who  laid  the  foundations  of  this  government  too  well 
to  permit  them  to  disregard  the  dangers  which  they 
sought  to  avert,  by  depriving  Congress,  as  well  as  the 
several  States,  of  all  power  to  enact  such  cruel  statutes. 
If  bills  of  attainder  had  been  passed  only  for  the 
punishment  of  treason,  in  the  sense  of  making  war 
upon  the  government,  or  aiding  the  enemy,  they  would 
have  been  less  odious  and  less  dangerous ;  but  the  regi- 
ment of  crimes  which  servile  Parliaments  had  enrolled 
under  the  title  of  "  treason,"  had  become  so  formidable, 
and  the  brutality  of  the  civil  contests  in  England  had 
been  so  shocking,  that  it  was  thought  unsafe  to  trust 
any  government  with  the  arbitrary  and  irresponsible 
power  of  condemning  by  statute  large  classes  of  their 
opponents*  to  death  and  destruction  for  that  which  only 
want  of  success  had  made  a  crime. 

BILLS  OF  ATTAINDER,   HOW  RECOGNIZED. 

The  consequences  of  attainder  to  the  estate  of  the 
party  convicted  will  be  more  fully  stated  hereafter ; 
but  it  is  essential  to  observe  that  there  are  certain  char- 
acteristics which  distinguish  bills  of  attainder  from  all 
other  penal  statutes. 

1.  They  always  inflict  the  penalty  of  death  upon  the 
offender,  or  of  outlawry,  which  is  equivalent  to  death. 
•     2.  They  are  always  ex  post  facto  laws,  being  passed 
after   the    crime   was    committed  which  they  are,  to 
punish. 

3.  They  never  allow  the  guilt  or  innocence  of  the 
persons  attainted  to  be  ascertained  by  trial ;  but  the 
guilt  is  attributed  to  them  by  act  of  Parliament. 

4.  They   always   inflicted    certain  penalties,  among 


92  CONSTH  LTES. 

which  were  corruption  of  blood  and  forfeiture  of  estate. 
The  essence  of  attainder  was  in  corruption  of  blood, 
and  without  the  corruption  of  blood  no  person  was  by 
tin-  English  law  attainted: 

Unless  a  law  of  Congress  shall  contain  these  four 
characteristics — penalty  of  death,  or  outlawry,  corrup- 
tion of  blood,  and  the  legislative,  nol  judicial  condem- 
nation—  embodied  in  a  law  passed  after  the  commis- 
sion of  the  crime  it  seeks  to  punish,  it  is  not  a  bill  of 
attainder  under  the  sense  of  the  constitution. 


INTRODUCTION  TO   CHAPTER  V. 


Under  the  English  law,  prior  to  the  Revolution,  there  had  been  three  modes 
of  punishing  the  crime  of  Treason.  First,  by  bills  of  attainder.  Second,  by- 
judicial  attainder.  Third,  by  statutes  of  the  realm  against  treason,  actual  and 
constructive.  Bills  of  attainder  were  acts  of  Parliament,  which  declared  one  or 
more  persons,  whether  living  or  dead,  or  absent  beyond  seas,  guilty  of  the  crime 
of  actual  or  constructive  treason.  Judicial  attainder  was  effected  in  the  courts 
of  law  by  process  issued  against  persons  accused  of  treason,  whether  living  or 
dead,  or  absent  beyond  seas.  The  effect  of  attainder  by  judicial  process  was 
substantially  the  same  as  that  of  attainder  by  act  of  Parliament,  in  effecting 
corruption  of  blood,  and  working  forfeiture  of  estates  'during  the  life  of  the 
offender,  and  after  he  was  dead. 

Parsons  accused  of  treason  were  punishable  under  statutes,  by  death  and 
total  forfeiture  of  estates ;  but  no  one  could  be  convicted,  sentenced,  and  pun- 
ished for  treason,  under  statutes,  "  unless  during  his  life,"  that  is  to  say,  while 
alive,  nor  unless  he  had  received  a  trial  in  court,  conducted  according  to  the 
usual  forms  of  procedure. 

By  our  Constitution,  all  power  is  taken  from  the  General  Government,  and 
from  all  the  States,  to  punish  treason  by  passing  any  bill  of  attainder,  as  is 
shown  in  Chapter  IV. 

Congress  has  power  to  authorize  courts  to  punish  treason  by  judicial  attain- 
der ;  but  the  Constitution  has  limited  the  time  during  which  such  process  may 
be  applied,  and  its  effect,  in  these  words  : 

"  No  attainder  of  treason  shall  work  corruption  of  blood,  nor  forfeiture  of 
estat^  except  during  the  life  of  the  offender." 

These  provisions  apply  only  to  judicial  attainder,  and  not  to  punishments  of 
treason  under  ordinary  statutes  of  Congress,  which  provide  for  no  attainder. 

The  constitutional  power  of  Congress  to  authorize  proceedings  for  judicial 
attainder  of  persons  who  have  committed  treason,  has  not  been,  thus  far,  car- 
ried into  effect. 

No  process  of  attainder  of  treason  is  now  known  in  our  municipal  law. 

To  guard  against  abuse,  under  which  our  forefathers  in  England  suffered, 
by  reason  of  unjust  and  arbitrary  definitions  of  treason,  the  Constitution  pre- 
scribes certain  rules  for  the  definition,  proof,  and  punishment  of  offences  under 
statute  law,  which  Congress  may  pass  for  the  punishment  of  that  crime.     It 


9  1  UJTRODl  OTION    PO    CH  M'li  u    v. 

:lius  cutting 

.-.ui  known  to  the  English  law.     It  requires, 

.11  be  t«"  «  ins  to  (   ch  overt  act  ■«  ith 

\  •         bj  jury  in  open  court,  and  in  the  pres- 

•  d  he  is  liable  I 

limit  in 
y  provide. 
•  .1  to  punUhmi  at  by  di  ath,  and  to  the  forfeit- 
an  unlimib  '1  amount.     The  crimina  . 

■  not,  attaint.  ,i,  or  Bubject  t..  any  <>f  the 

The  limitat:  I  . m-titutioii 

which  do  not  provide  lor  attainder  but  oi 


rUMSHMENT    OF    TREASON.  95 


CHAPTER    V. 

RIGHT  OF  CONGRESS  TO  DECLARE  BY  STATUTE  THE  PUN- 
ISHMENT  OF  TREASON,  AND  ITS  CONSTITUTIONAL  LIMI- 
TATIONS. 

TREASON. 

The  highest  crime  known  to  the  law  is  treason.  It  is 
"  the  sum  of  all  villanies ;  "  its  agents  have  been  branded 
with  infamy  in  all  countries  where  fidelity  and  justice 
have  respect.  The  name  of  one  who  betrays  his  friend 
becomes  a  byword  and  a  reproach.  How  much  deeper 
are  the  guilt  and  infamy  of  the  criminal  who  betrays 
his  country  !  No  convict  in  our  State  prisons  can  have 
fallen  so  low  as  willingly  to  associate  with  a  traitor. 
There  is  no  abyss  of  crime  so  dark,  so  horrible,  as  that 
to  which  the  traitor  has  descended.  He  has  left  for- 
ever behind  him  conscience,  honor,  and  hope. 

ANCIENT    ENGLISH    DOCTRINE   OF  CONSTRUCTIVE  TREASON. 

Treason,  as  defined  in  the  law  of  England,  at  the 
date  of  the  constitution,  embraced  many  misdemeanors 
which  are  not  now  held  to  be  crimes.  Offences  of  a  po- 
litical character,  not  accompanied  with  any  intention  to 
subvert  the  government ;  mere  words  of  disrespect  to 
the  ruling  sovereign;  assaults  upon  the  king's  officers 
at  certain  times  and  places ;  striking  one  of  the  judges 
in  court;  and  many  other  acts  which  did  not  partake 
of  the  nature  of  treason,  were,  in  ancient  times,  declared 
treason  by  Parliament,  or  so  construed  by  judges,  as 
to  constitute  that  crime.     Indeed,  there  was  nothing  to 


-;in  ih'N    OP    nn:    I  NITED   STATES. 

prevent  Parliament  from  proclaiming  an}  acl  of  a  sub- 
to  be  treason,  thereby  subjecting  him  to  all  its  ter- 
penalties.     The  doctrine  of   constructive   //■>> 

servile  judges,  who  1  it*I<  1  their  office  during 
the  pleasure  of  the  king,  was  used  by  them  in  such  ;i 
way  as  to  enable  the  sovereign  safely  to  wreak  ven- 
geance upon  his  victims  under  the  guise  of  judicial 
condemnation.  If  the  king  sought  to  destroy  a  rival, 
the  A.wiM  pronounce  him  guilty  of  constructive 

son;  in  other  words,  they  would  so  con-true  the 
the  defendant  as  to  make  them  treason.  Thus 
the  king  could  selfishly  outrage  every  principle  of 
law  and  justice,  while  avoiding  responsibility.  No 
man's  life  or  property  was  sale.  The  wealthier  the 
citizen,  the  greater  was  his  apprehension  that  the  king 
would  seize  and  confiscate  his  estates.  The  danger 
lay  in  the  fact  that  the  nature  and  extent  of  the  legal 
crime  of  treason  was  indeterminate,  or  was  left  to 
arbitrary  determination.  The  power  to  define  treason, 
i  la  re  from  time  to  time  who  should  be  deemed  in 
law  to  he  traitors,  was  in  its  nature  an  arbitrary  power. 
No  government  having  that  power  would  fail  to  become 
oppressive  in  times  of  excitement,  and  especially  in 
civil  wai.  arly  as  the  reign  of  Edward  III.,  Parlia- 

•  put  an  end  to  these  judge-made-treasons  by  de- 
claring and  defining  all  the  different  acts  which  should 
be  deemed  treason;  and,  although  subsequent  statutes 
have  added  to  or  modified  the  law,  yet  treason  has  at 
all  times  since  that  reign  been  defined  by  statute. 

I    DEFINE    AND    PUNISH    TREASON    LIMITED. 

It  was  with  full  knowledge  of  the  history  of  judicial 
usurpation,    of   the    tyranny    of   exasperated    govern- 


PUNISHMENT    OF   TREASON.  97 

ments,  and  of  the  tendency  of  rival  factions  in  lepub- 
lics  to  seek  revenge  on  each  other,  that  the  convention 
which  framed  the  constitution,  having  given  no  power 
to  the  judiciary,  like  that  possessed  by  English  judges, 
to  make  constructive  crimes,  introduced  several  pro- 
visions limiting  the  power  of  Congress  to  define  and 
punish  the  political  crime  of  treason,  as  well  as  other 
offences. 

The  various  clauses  in  the  constitution  relating  to 
this  subject,  in  order  to  a  clear  exposition  of  their 
meaning,  should  be  taken  together  as  parts  of  our 
system. 

ATTAINDER  AND  EX  POST  FACTO   LAWS. 

The  first  and  most  important  limitation  of  the  power 
of  Congress  is  found  in  Art.  I.  Sect.  9  :  "  No  bill  of 
attainder,  or  ex  pod  facto  law,  shall  be  passed."  By  pro- 
hibiting bills  of  attainder,  no  subject  could  be  made  a 
criminal,  or  be  deprived  of  life,  liberty,  or  projoerty,  by 
mere  act  of  legislation,  without  trial  or  conviction.  The 
power  to  enact  ex  post  facto  laws  having  been  with- 
held, Congress  could  not  pass  "  a  statute  which  would 
render  an  act  punishable  in  a  manner  in  which  it  was 
not  punishable  when  it  was  committed."  No  man's 
life  could  be  taken,  his  liberty  abridged,  nor  his  estate, 
nor  any  part  of  it,  seized  for  an  act  which  had  not,  pre- 
viously to  the  commission  thereof,  been  declared  by 
some  law  as  a  crime,  and  the  manner  and  extent  of 
punishment  prescribed.*  Hence  no  law  of  Congress 
can  make  that  deed  a  crime  which  was  not  so  before 
the  deed  was  done.    Every  man  may  know  what  are  the 

*  See  Fletcher  v.  Peck,  6  Cranch,  138. 

13 


mi  ["ION    OP   Tin:   UNITED   STA 

laws  to  which  he  is  amenable  in  time  of  peace  by  read 
ing  the  statutes.     There  can  be  qo  retrospective  crimi- 
nal legislation  by  any  Stale,  or  by  the  United  States. 

i  i:  I  UJOH    Dl  I  imp   Bl    BTAT1   re 

These  points  having  been  secured,  the  next  step  was 
the  crime  of  Tin  \  -■  •.  Countless  difficulties  and 
dangers  were  avoided  by  selecting  from  the  English 
statu:  crime  >»,h.  which  should  be  deemed  to  con- 

stitute that  offence. 

The  constitution  provides  that, "  Treason  against  the 
United  States  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving  them  aid 
ami  comfort."*  Bence  many  acts  are  not  treasonable 
which  were  so  considered  according  to  the  law  of  Eng- 
land, and  of  the  colonics  and  States  of  this  country. 
Each  State  still  retain-  the  power  to  define  and  punish 
insl  itself  in  its  own  way. 

Nothing  but  overt  acts  are  treasonable  by  the  laws  of 
the  United  Si  and  these  overl  acts  must  be  overt 

of  war.-.  These  acts  must  be  proved  -cither  by 
confession  in  open  court,  or  by  two  witnesses  to  the 
Bame  act.  |  Our  ancestors  took  care  that  no  one 
should  be  convicted  of  this  infamous  crime,  unless  his 
euilt  is  made  certain.  So  odious  was  the  offence 
that  even  a  senator  or  representative  could  be  arrested 
on  uspicion  of  it.  §  All  civil  officers  were  to  be  removed 
from  office  on  impeachment  and  conviction  thereof.  || 
And  a  person  charged  with  treason  against  a  State, and 
fleeing  from  that  Mate  to  another,  was  to  be  delivered 


•  Art.  III.  Sect  3.  t  Ibid.  X  Ibid. 

i  Art.  I.  Sect.  6.  II  Art.  II.  Sect.  4. 


PUNISHMENT    OF   TREASON.  99 

up,  on  demand,  to  the  State  having  jurisdiction  *  The 
crime  being  defined,  and  the  nature  of  the  testimony 
to  establish  it  being  prescribed,  and  conviction  being 
possible  only  in  "  open  court,"  the  constitution  then 
provides,  —  that  "  Congress  shall  have  power  to  declare 
the  punishment  of  treason,  but  no  attainder  of  treason 
shall  work  corruption  of  blood,  or  forfeiture,  except 
during  the  life  of  the  person  attainted."*)" 

CONGRESS  HAVE  UNLIMITED  POWER   TO  DECLARE   THE  PUNISHMENT 

OF   TREASON. 

By  this  article,  the  constitution  has  in  express  terms 
given  to  Congress  the  power  to  declare  the  punishment 
of  treason ;  and  the  nature  and  extent  of  the  punish- 
ment which  they  may  declare  are  not  limited.  Congress 
may  impose  the  penalty  of  fine,  or  imprisonment,  or 
outlawry,  or  banishment,  or  forfeiture,  or  death,  or  of 
death  and  forfeiture  of  property,  personal  and  real. 
Congress  might  have  added  to  all  these  punishments 
the  more  terrible  penalty  which  followed,  as  a  conse- 
quence of  attainder  of  treason,  under  the  law  of  England, 
had  the  constitution  not  limited  the  effect  and  opera- 
tion of  that  species  of  attainder. 

A  COMMON    ERROR. 

Some  writers  have  supposed  that  this  article  in  the 
constitution,  which  qualifies  the  effect  of  an  attainder 
of  treason,  was  a  limitation  of  the  power  of  Congress  to 
declare  the  punishment  of  treason.  This  is  an  error.  A 
careful  examination   of  the   language  used  in  the  in- 

*  Constitution,  Art.  IV.  Sect.  6.  t  Art.  III.  Sect.  3. 


100  '  ONSTITOTIOH    OF   TEE    I  \m  D   BTi 

Btrumenl   itself,  and  of  the  history  of  the   English  law 

ttainder,  will  make  il   evident  thai   the  framers  of 

the  constitution,  in  drafting  Sect  •">  "I'  Art.  111.  ('id  Dot 

ign  to  restrain  Congress  from  declaring  against   tin' 
traitor   himself,   his    person  or   estate,   such    penaltl 
as  it  might  deem  sufficient  to  atone  for  the  highest  of 
Crimea 

Whenever  a  person  had  committed  high  treason  in 
England,  and  had  been  duly  indicted,  tried,  and  con- 

ted,  and  when  final  judgment  ofguilty,and  senten< 
of  death  or  outlawry,  had  been  pronounced  upon  him. 
tin-  immediate  and  inseparable  consequence,  by  com- 
mon law,  of  the  sentence  of  death  or  outlawry  of  the 
offender  for  treason,  and  lor  certain  other  felonies,  was 
atltu.  '  Attainder  means,  in  its  original  application, 
ir  corruption  of  the  blood  of  a  criminal 
who  was  in  the  contemplation  of  law  dead.  He  then 
became  u  attinctus —  stained,  blackened,  attainted." 

CONSEQUENCES  OF  ATTAINDER. 

tain  legal  results  followed  attainder)  among 
which  are  tie-  following:  The  convict  was  no  longer  of 
any  credit  or  reputation,  lie  could  not  be  a  witness 
in  any  court,  lie  was  not  capable  of  performing  the 
d  functions  of  any  other  man;  his  power  to  sell  or 
transfer  hifl  lands  and  personal  estate  ceased.  By  anti- 
cipation of  his  punishment  he  was  already  dead  in  law,* 
t  when  the  fiction  of  the  law  would  protect  him 
from  some  liability  to  others  which  he  had  the  power 
to  discharge.  It  i-  true  that  the  attainted  felon  could 
not  be  murdered  with  impunityyj"  but  the  law  preserved 

213.  t  Foster,  73. 


PUNISHMENT    OF    TREASON.  10 1 

his  physical  existence  only  to  vindicate  its  own  majesty, 
and  to  inflict  upon  the  offender  an  ignominious  death. 

CORRUPTION  OF  BLOOD. 

Among  the  most  important  consequences  of  attainder 
of  felony,  were  those  resulting  from  "corruption  of  blood? 
which  is  the  essence  of  attainder*     Blackstone  says,-]-  — 

"  Another  immediate  consequence  of  attainder  is  the  corruption  of 
blood,  both  upwards  and  downwards  ;  so  that  an  attainted  person  can 
neither  inherit  lands  or  other  hereditaments  from  his  ancestors,  nor 
retain  those  he  is  already  in  possession  of,  nor  transmit  them  by  descent 
to  any  heir ;  but  the  same  shall  escheat  to  the  lord  of  the  fee,  subject 
to  the  king's  superior  right  of  forfeiture  ;  and  the  person  attainted 
shall  also  obstruct  all  descents  to  his  posterity  whenever  they  are 
obliged  to  derive  a  title  through  him,  to  a  remote  ancestor." 

The  distinctions  between  escheat  and  forfeiture  it  is 
not  necessary  now  to  state,  %  because,  whether  the  for- 
feiture enured  to  the  benefit  of  the  lord  or  of  the  king;, 
the  effect  was  the  same  upon  the  estate  of  the  criminal.  § 
By  this  legal  fiction  of  corruption  of  blood,  the  offender 
was  deprived  of  all  his  estate,  personal  and  real ;  his 
children  or  other  heirs  could  not  inherit  any  thing  from 
him,  nor  through  him  from  any  of  his  ancestors.  "  If 
a  father  be  seized  in  fee,  and  the  son  commits  treason 
and  is  attainted,  and  then  the  father  dies,  then  the 
lands  shall  escheat  to  the  lord."  || 

SAVAGE   CRUELTY   OF  ENGLISH   LAW". 

By  the  English  system  of  escheats  to  the  lord  and 
forfeitures  to  the  king,  the  innocent  relatives  of  the 
offender  were   punished,  upon   the  theory  that  it  was 

*  See  Co.  Litt.  391.  t  4  Com.  b.   388.  %  See  Co.  Litt.  13. 

§  Co.  Litt.  p.  391.     Bla.  Com.  Vol.  II.  p.  254  ||  Co.  Litt.  p.  13. 


I  mi  l'i"\    OF   THE    i  KITED    STATES. 

ever}  familj  to  Becure  the  loyalty  of  all  its 
members  to  the  sovereign;  and  upon  failure  to  do 
the  whole  family  Bhould  be  plunged  into  lasting  dis- 
grace and  poverty.  A  punishment  which  raighl  con- 
tinue for  twenty  generations,  was  indeed  inhuman,  ami 
ved,  as  it  merited,  the  condemnation  of  liberal  men 
in  all  countries;  but  aristocratic  influence  in  England 
had  for  centuries  resisted  tin'  absolute  and  final  aban- 
donment of  the-.'  odious  penalties.  The  framers  of 
the  constitution  have  deprived  Congress  of  the  power 
of  passing  bills  of  attainder.  They  might  have  pro- 
vided that  n«>  person  convicted  of  treason  should  he 
held  to  he  attainted,  or  be  liable  to  suffer  any  of  the 
common  law  penalties  which  resulted  from  attainder, 
hut  only  such  penalties  as  Congress  should  prescribe 
by  Btatute.  They  have,  however,  not  in  terms,  abolished 
attainders,  hut  have  modified  their  effect,  by  declaring 
that  attainder  shall  not  work  corruption  of  blood. 


i'<>i;n  in  i:ks. 


By  the  law  of  England,  forfeiture  of  ev(;lt<>s  was  also 
one  of  the  necessary  legal  consequences  of  attainder  of 
felony.  Real  estate  was  forfeited  upon  attainder,  per- 
Bonal  estate  upon  conviction  before  attainder.  By 
these  forfeitures  all  the  property,  rights,  and  claims,  of 
every  name  and  nature,  went  to  the  lord  or  the  king. 
But  forfeiture  of  lands  related  back  to  the  time  when 
the  felony  was  committed,  so  as  to  avoid  all  subsequent 
Bales  and  encumbrances,  but  forfeiture  of  goods  took 
effect  at  the  date  of  conviction,  so  that  sales  of  person- 
al property,  prior  to  that  time,  were  valid,  unless  col- 

•   See  4  Bla.  Com.  p.  388. 


PUNISHMENT    OF    TREASON.  103 

lusive.*  The  estates  thus  forfeited  were  not  mere 
estates  for  life,  but  the  whole  interest  of  the  felon,  what- 
ever it  might  be.  Thus  forfeiture  of  property  was  a 
consequence  of  attainder ;  attainder  was  a  consequence 
of  the  sentence  of  death  or  outlawry ;  and  these  penal 
consequences  of  attainder  were  over  and  above,  and  in 
addition  to,  the  penalties  expressed  in  the  terms  of 
the  judgment  and  sentence  of  the  court.-\  The  punishment, 
and  in  many  instances  the  only  punishment,  to  which 
the  sentence  of  the  court  condemned  the  prisoner,  was 
death  or  outlawry.  The  disabilities  which  resulted  from 
that  sentence  were  like  the  disabilities  which  in  other 
cases  result  from  the  sentence  of  a  criminal  for  in- 
famous crimes.  Disability  to  testify  in  courts,  or  to 
hold  offices  of  trust  and  honor,  sometimes  follows,  not 
as  part  of  the  punishment  prescribed  for  the  offence, 
but  as  a  consequence  of  the  condition  to  which  the 
criminal  has  reduced  himself. 

There  is  a  clear  distinction  between  the  punishment 
of  treason  by  specific  penalties  and  those  consequential 
damages  and  injuries  which  follow  by  common  law  as 
the  result  or  technical  effect  of  a  sentence  of  death  or 
outlawry  for  treason,  viz.,  attainder  of  treason,  and  cor- 
ruption of  blood  and  forfeiture  of  estates. J  To  set  this 
subject  in  a  clearer  light,  the  learned  reader  will  rec- 
ollect  that   there  were   different   kinds   of  attainder : 


*  See  Stat.  13  Eliz.  ch.  5  ;  2  B.  &  A.  258  ;  2  Hawkins's  P.  C.  454  ;  3 
Ins.  232  ;  4  Bla.  387  ;  Co.  Litt.  391,  b. 

\  See  2  Greenleafs  Cruise  on  Real  Property,  p.  145,  and  note  ;  2  Kent, 
386;  1  Greenleafs  Cruise,  p.  71,  sect.  1,  and  note. 

%  There  is  a  provision  in  the  new  constitution  of  Maryland,  (1851,)  that 
"  no  conviction  shall  work  corruption  of  blood  or  forfeiture  of  estate." 
(Decl.  of  Rights,  Art.  24.)  The  constitution  of  Ohio  (1851)  contains  the 
same  words  in  the  12th  sect,  of  the  Decl.  of  Rights.     The  constitutions  of 


[TED    BTAT1    , 

1     l  in  w liidi.  ••  from  iln*  convic- 

tion,  the  defendant  shall  be  out  of  the  king's  protection, 
his  lands,  tenements,  goods,  and  chattels  forfeited  to  the 

.  aixl  his  body  remain  in  prison  during  the  king's 
.  or  during  1  i t"« -_**  :  Bui  the  offences  punishable 
under  the  statutes  of  praemunire  wen-  nol  felonies,  for 
the  latter  are  punishable  only  by  common  law,  and 
not  by  statin. '.v  '_!.  Attainder  by  biH.  •').  Attainders  of 
nd  treason;  and  the  important  distinction  be- 
:i  attainders  in  treason  and  attainders  in  praemu- 
nire is  this:  that  in  the  former  the  forfeitures  arc  con- 
sequences of  the  judgment,  in  the  latter  they  arc  part 
of  the  judgment  and  penalty.  BlackstoneJ  recognizes 
fully  this  distinction.  u  1  here  omit  the  particular  for- 
feitures created  by  the  statutes  of  praemunire  and 
others,  because   I    look  upon    them   rather  as  a   part  of 

judgment  and  penalty  inflicted  by  the  respective 
statutes,  than  as  consequences  of  such  judgment,  as  in 

■'in  and  felony  they  are."     Lord  Coke  expresses  the 

Kentu  I  dvania  declare  that  attainder  of  treason  shall 

rk  forfeiture  beyond  the  lifetime  of  the  offender.     In  Alabama,  Con- 
necticut, Indiana,  Illinois,  Maine,  Missouri,  New  Jersey,  Rhode  Island,  and 
all   forfeitures   for   crime   are  abolished,  cither  by  statutes  or 

hire,  Massachusetts,  Virginia,  Georgia,  Michigan,  Mis- 
.  there  are  statutes  providing  specifically  for  the  punish- 
ment i  ;  ind  felonies;  but  no  mention  is  made  of  corruption  of  blood 
or  fori'  inasmuch  as  these  offences  are  explicitly  legislate  1 
.   ind  a  particular  punishment  provided  in  each  case,  it  may  be  gravely 
doubted  whi                   idditional  common  law  punishment  of  forfeiture  of 
not  to  be  Led  by  implication."     1  Greenleafa 
Cruise  Dig.  196,  note. 

'    1    Inst    129;  '■>  Bla.  p.  1 1 S  ;  and  for  the  severity  of  the  penalties,  Bee 
1  Hawk.  P.  G  55. 

t  4  Bla.  US.  J  4  Com.  p.  38G. 


PUNISHMENT    OF   TREASON.  105 

same  opinion*  And  statutes  of  praemunire  and  at- 
tainders of  treason  are  both  different  in  law  from  bills 
of  pains  and  penalties ;  of  which  English  history  affords, 
among  many  other  examples,  that  against  the  Bishop 
of  Rochester ;  -j-  in  the  latter  the  pains  and  penalties 
are  all  expressly  declared  by  statute,  and  not  left  as 
consequences  of  judgment.  That  clause  in  the  con- 
stitution which  gives  power  to  Congress  to  make  laws 
for  the  punishment  of  treason,  limits  and  qualifies  the 
effect  of  attainder  of  treason,  in  case  such  attainder 
should  be  deemed  by  the  courts  as  a  legal  consequence 
of  such  sentence  as  the  statute  requires  the  court  to 
impose  on  traitors.  This  limitation  applies,  in  terms, 
only  to  the  effect  of  attainders  of  treason. 

CHARACTERISTICS  OF  ATTAINDER  OF  TREASON. 

There  is  no  attainder  of  treason  known  to  the  law 
of  England,  unless,  1.  The  judgment  of  death  or  out- 
lawry has  been  pronounced  against  the  traitor.  \  2. 
Where  the  crime  was  a  felony,  and  punishable  accord- 
ing to  common  law;§  and,  3.  Where  the  attainder  was 
a  consequence  of  the  judgment,  and  not  part  of  the 
judgment  and  penalty.  (|  Congress  may  pass  a  law 
condemning  every  traitor  to  death,  and  to  the  conse- 
quential punishment  of  "  attainder ; "  but  such  attainder 
will  not  of  itself  operate  to  corrupt  blood  or  forfeit 
estate,  except  during  the  life  of  the  offender.  But  unless 
Congress  pass  a  law  expressly  attainting  the  criminal  of 

*  Co.  Litt.  391,  b.  f  Stat.  9  Geo.  I.  ch.  17. 

%  4  Bla.  387.  §  4  131a.  387. 

||  lb  ;  Co.  Litt.  391,  b. ;  4  Bla.  386. 

14 


I  ill     i  \;  ii  D   STATES. 

•  !i.  there   la   Dot,  under  the  laws  of  the  United 
1 1 \   "attainder."     The   criminal    laws  of  the 
United  States  are  all  embraced  in  specific  statute 
iinin  !  all  their  penalties.     No  consequential 

ilties  of  this  character  are  known  to  this  law.     And 
■  •I    i-   convicted  and   sentenced   to  death  I'm' 
i ,1  be  ii"  corruption  of  blood,  nor  for- 
feitureofesl  p1  by  express  terms  of  the  statute. 

The  constitution  forbid  tin' 

makii  laws  which   should    Leave    the    penalty  of 

crime  to  be  determined  by  ancient  or  antiquated  com- 
mon law  proceedings  of  English  courts.  Forfeiture  of 
estate,  tatute,  may  he  in  the  aature 

of  forfeiture  by  a  hill  of  pains  and  penalties,  or  praemu- 
bul   is  not  forfeitui  tainderj  nor  is  it  such 

iture  a-  is  within  the  sense  of  the  constitution, 
which  limits  the  operation  of  attainders  of  treason. 
This  distinction  was  well  known  to  the  trainers  of  the 
constitution.  They  thought  it  besl  to  guard  against 
the  danger  of  those  constructive  and  consequential 
punishments,  giving  full  power  to  Congress,  in  plain 
terms,  to  pr<  by  .-tatute   what   punishment  they 

should  .-elect  :  hut  in  case  of  resort  to  attainder  of 
iie  of  those  punishments,  that  form  of  pun- 
ishment should  not  be  so  construed  as,  e%  vi  termini,  to 
corrupt  blood  nor  forfeit  estate  except  during  the  life 
of  the  person  attainted. 

TECHNICAL   LANGUAGE   TO    BE    CONSTR1  ED   TECHNICALLY. 

The  language  of  the  constitution  is  peeuliar ;  it  is, 
technical  ;  and  it  .-hows  on  the  face  of  it  an  intention 
to  limit  the  technical  operation  of  attainders,  not  to 
limit  »pe  or  extent  of  legislative  penalties.     If 


PUNISHMENT    OF   TREASON.  107 

the  authors  of  the  constitution  meant  to  say  that  Con- 
gress should  pass  no  law  punishing  treason  by  attainder, 
or  by  its  consequences,  viz.,  forfeiture  of  estate,  or  cor- 
ruption of  blood,  they  would,  in  plain  terms,  have  said 
so ;  and  there  would  have  been  an  end  to  the  penalties 
of  attainder,  as  there  was  an  end  to  bills  of  attainder. 
Instead  of  saying,  "  Congress  shall  have  power  to  de- 
clare the  punishment  of  treason,  but  shall  not  impose 
the  penalties  of  attainder  upon  the  offender,"  they 
said,  "  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason,  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the 
life  of  the  person  attainted." 

This  phraseology  has  reference  only  to  the  technical 
effect  of  attainder.  The  "  working  of  forfeitures  "  is  a 
phrase  used  by  lawyers  to  show  the  legal  result  or  effect 
which  arises  from  a  certain  state  of  facts.  If  a  traitor 
is  convicted,  judgment  of  death  is  passed  upon  him ; 
by  that  judgment  he  becomes  attainted.  Attainder 
works  forfeitures  and  corruption  of  blood ;  forfeitures 
and  corruption  of  blood  are,  in  the  ordinary  course  of 
common  law,  followed  by  certain  results  to  his  rights 
of  property.  But  the  constitution  provides,  if  the 
traitor  is  attainted,  that  attainder  shall  not,  ex  vi  termini, 
and  of  its  own  force,  and  without  statute  to  that  effect, 
"work"  forfeiture  or  corruption  of  blood.  The  con- 
vict may  still  retain  all  those  civil  rights  of  which  he 
has  not  been  deprived  by  the  strict  terms  of  the  statute 
which  shall  declare  the  punishment  of  treason. 

The  punishment  of  treason,  by  the  statute  of  the 
United  States  of  April  30,  1790,  is  death,  and  nothing 
more.  Can  any  case  be  found,  since  the  statute  was 
enacted,  in  which  a  party  convicted  and  adjudged  guilty 


108  now   OP   mi    i  Mil  D  Bl  \ 

of  treason  and  sentenced  to  death,  has  been  held  to  be 
u  attainted"  of  treason,  30  thai  the  attainder  has  worked 
forfeiture  of  anj  of  his  estate,  real  or  personal '.'  Would 
:ii\  lawyer  feel  astonishment  if  a  court  of  the 
United  States,  having  sentenced  a  traitor  to  death 
under  the  law  of  L  790,  should  announce  as  a  further 
.'•\  the  forfeiture  of  the  real  and  personal  estate 
<>f  the  offender, "  worked "  by  the  attainder  of  felony, 
notwithstanding  no  such  penalty  is  mentioned  in  that 
statu 

I    I  ould  pass  an  act  punishing  a  traitor  by 

a  fine  of  five  dollars,  ami  imprisonment   lor  live  years, 
would  not  feci  amazed  to  learn  that  by  the  English 
duct:  forfeitures  worked  by  attainders,  by  opera- 

tion of  law.  the  criminal  might  be  stripped  of  property 
worth  thousands  of  dollars,  over  ami  above  the  penalty 
3cribed  by  statu: 

1;    MEANING   OF   AUT.   III.   SECT.    III.   CL.   II. 

The  constitution  moans  that   if  traitors  shall  ho  at- 
tainted, unlimited  forfeitures  ami   corruption  of  blood 
shall  not  be  worked   by  attainders.      It  means   to   leave 
untrammelled  the  power  of  Congress  to  cause  traitors 
attainted  or  otherwise ;  hut  if  attainted  Congress 
provide    by   Statute   for    the    attainder;    and    the 
itution  BettJes  how  far  that  attainder  shall  operate 
■  itutionally  ;  and  when  the  legislature  has  awarded 
punishment  for  treason,  the  court  shall  not  evoke 
the  doctrine  of  forfeitures  worked   by  attainder,  and 
thus,  by  technical  implication,  add  punishments  not  spe^ 
cifically  Bet  down  in  the  penal  statute  itself;  or  if  this 
implication  exist,  the  results  of  the  technical  effect  of 
attainder  shall  not  be  corruption  of  blood,  or  forfeiture, 


PUNISHMENT    OF   TREASON.  109 

except  during  the  life  of  the  offender.  The  third  ar- 
ticle does  not  limit  the  power  of  Congress  to  punish, 
but  it  limits  the  technical  consequences  of  a  special 
kind  of  punishment,  which  may  or  may  not  be  adopted 
in  the  statutes. 

From  the  foregoing  remarks  it  is  obvious  that  no 
person  is  attainted  of  treason,  in  the  technical  sense, 
who  is  convicted  under  the  United  States  act  of  1790. 
There  can  be  no  attainder  of  treason,  within  the  meaning; 
of  the  constitution,  unless  there  be,  first,  a  judgment  of 
death,  or  outlawry ;  second,  a  penalty  of  attainder  by 
express  terms  of  the  statute.  A  mere  conviction  of 
treason  and  sentence  of  death,  or  outlawry,  and  forfeit- 
ures of  real  and  personal  estate,  do  not  constitute  an 
attainder  in  form,  in  substance,  nor  in  effect,  when  made 
under  any  of  the  present  statutes  of  the  United  States. 

IF   CONGRESS    MAT  IMPOSE  FINES.   WHY   NOT   FORFEITURES  ? 

No  one  doubts  the  power  of  Congress  to  make  trea- 
son punishable  with  death,  or  by  fines  to  any  amount 
whatever.  Nor  would  any  reasonable  person  deem  any 
fine  too  large  to  atone  for  the  crime  of  involving  one's 
own  country  in  civil  war.  If  the  constitution  placed 
in  Congress  the  power  to  take  life,  and  to  take  prop- 
erty of  the  offender  in  one  form,  why  should  it  deny 
the  power  to  take  property  in  any  other  form  ?  If  the 
framers  of  the  constitution  were  willing  that  a  traitor 
should  forfeit  his  life,  how  could  they  have  intended 
to  shelter  his  property  ?  Was  property,  in  their  opin- 
ion, more  sacrecl  than  life  ?  Would  all  the  property 
of  rebels  forfeited  to  the  treasury  of  the  country  repair 
the  injury  of  civil  war  ? 


1  1(1  OONSTITl  HON    "I     nn.    t  NITED    E  I  \ 

rOR]  i  I  n  ESS    HOT    LIMITED    i"   mm    ESTATES 

1     ild  the  lawyers  who  drafted  the  constitution  have 
intended  to  limit  the  pecuniary  punishmenl   of  forfeit- 
to  a  life  interest    in   personal  ■  hen   e\  ery 
lawyer  in  the  convention   must   have  known  than  at 
common  law  there  was  no  such  thing  as  a  life  estate  in 
jonal  property^     Knowing  tins,  did  th  q  to 
ici   traitors,  under  all  circumstances,  in  the  enjoy- 
ment of  persona]  property?     [f  so,  whj  did  they  not 
say  so?     [fthey  meant  to  prevent  Congress  from  pass- 
ing any  law  that  should  deprive  traitors  of  more  than 
a  life  estate  in  real  estate,  the  result  would  be,  that  the 
criminal   would    lose   only  the   enjoyment    of  his  lands 
for  a  lew  davs  or  weeks,  from  the  date  of  the  judgment 
to  the  date  of  his  executidb,  and  then  his  lands  would 
go  to  his  heirs.     Thus  it   is  evident,  that  if  the  consti- 
tution cuts  oil' the  power  of  Congress  to  punish  treason, 
and  limits  it  to  such  forfeitures  as  arc  the  consequence 
of  attainder,  and  then  cuts  off  from  attainder  its  penal 
consequences  of  corruption  of  blood  and  forfeiture  of 
be,  except  during   the  life   of  the  offender,  then 
the   framers  of  that   instrument  have   effectually  pro- 
d  the  personal  and  real  estate  of  traitors,  and  have 
taken  more  care  to  secure  them  from  the  consequences 
of  their  crime  than  any  other  class  of  citizens.     ]!'  so, 
they  have  authorized  far  more  severity  against   many 
other  felons  than  against  them.     \i'  such  were  the  pur- 
of   the   authors   of  the   constitution,  they   would 
taken  direct  and  plain  language  to  say  what  they 
meant.      They  would  have  said.  k-  Congress  may  punish 
-on.  hut  shall  not  deprive  traitors  of  real  or  personal 
property,  except    for   the   time    which   may  elapse  be- 
tween   sentence    of    death    and     execution."       Instead 


PUNISHMENT    OF    TREASON.  Ill 

of  such  a  provision,  they  gave  full  power  to  punish 
treason,  including  fines,  absolute  forfeitures,  death,  and 
attainder,  only  limiting  the  technical  effect  of  the  last- 
mentioned  penalty,  if  that  form  of  punishment  should 
be  adopted  ;  and  Congress  has  the  power,  under  the 
constitution,  to  declare  as  the  penalty  for  treason  the 
forfeiture  of  all  the  real  and  personal  estate  of  the 
offender,  and  is  not  limited,  as  has  been  supposed  by 
some,  to  a  forfeiture  of  real  estate  for  life  only. 


Note.  —  Since  the  publication  of  the  seventh  edition,  it  has  been  decided  by 
Underwood,  J.,  in  the  Eastern  District  Court  of  the  U.  S.  for  Virginia,  in  the 
case  of  U.  S.  v.  Latham,  first,  that  the  Confiscation  Act  above  cited  is  author- 
ized by  the  Constitution ;  second,  that  by  the  terms  of  that  Act  (dated  July 
17th,  1862,  ch.  195),  as  modified  by  the  joint  resolution  of  July  27th,  1862 
(No.  63),  the  punishment  of  treason  is  not  limited  to  forfeiture  of  the  life  estate 
of  the  offender,  and  is  not  required  to  be  so  limited  by  the  Constitution ;  but 
the  forfeiture  extends  to  the  entire  estate  in  fee  simple. 


1  [2  \    OF   mi:    i  mm  D    STATES. 


c  II   \  I'  T  B  R      V  I  . 

BTAT1  I     rREASON.     WHAT  THE!    ARE,  AND    BOW 

THEY  ARE  TO    BE  ADMTNIS1  BRED. 

The   United    States    Btatute   of   April    30th,    L790, 
provides  that, — 

iwing  allegiam  e  to  the  United  Stat 

t  them,  or  shall  adhere  to  their  em 

id  and  comfort,  within  the  United  States  or  elsewhere, 

and  shall  be  thereof  convicted,  on  confession  in  open  court,  or  on  the 

of  two  witnesses  to  the  same  overt  act  of  the  treason  where- 

or  they  shall  stand  indicted,  such  person  <>r  persons  Bhall  be 

guilty  of  treason  against  the  1  and  shall  suffer 

Concealment  of  knowledge  of  treason  (misprision  of 
Miii   is,  by  the  same  act,  punished    by  fine  not 
(ling  one  thousand  dollars,  and   imprisonment  not 
a    years.     By  the    statute    of  January 
30th,  IT  responding  with  foreign  governments, 

or  with  any  officer  or  agent  thereof,  with  intent  to  in- 
fluence their  controversies  with  the  United  States,  or  to 
r  the  measures  of  this  government,  is  declared,  to 
high  misdemeanor,  though  not  called  treason,  and 
inishable  by  fine  not  exceeding  five  thousand  dol- 
and  imprisonment  during  a  term  not  less  than  six 
months,  nor  exceeding  three   \  So  the  law  has 

stood   dining  this   century,  until  the  breaking  out  of 
bellion. 
'idic  chief  ]u'"  of  the  law  passed  at  the  last 

.  and  approved  July,  17th,  I862,chap. 
195.  are  these  :  — 


STATUTES    AGAINST    TREASON.  lid 

Section  1.  Persons  committing  treason  shall  suffer 
one  of  two  punishments  :  1.  Either  death,  and  freedom 
to  his  slaves;  or,  2.  Imprisonment  not  less  than  five 
years,  fine  not  less  than  ten  thousand  dollars,  and  free- 
dom of  slaves ;  the  fine  to  be  collected  out  of  any 
personal  or  real  estate  except  slaves. 

Sect.  2.  Inciting  rebellion,  or  engaging  in  it,  or  aid- 
ing those  who  do  so,  is  punishable  by  imprisonment  not 
more  than  ten  years,  fine  not  more  than  ten  thousand 
dollars,  and  liberation  of  slaves. 

Sect.  3  disqualifies  convicts,  under  the  preceding  sec- 
tions, from  holding  office  under  the  United  States. 

Sect.  4  provides  that  former  laws  against  treason 
shall  not  be  suspended  as  against  any  traitor,  unless  he 
shall  have  been  convicted  under  this  act. 

Sect.  5  makes  it  the  duty  of  the  President  to  cause 
the  seizure  of  all  the  property,  real  and  personal,  of  several 
classes  of  persons,  and  to  apply  the  same  to  the  support 
of  the  army,  namely  :  1.  Rebel  army  and  navy  offi- 
cers ;  2.  Government  officers  of  Confederate  States  in 
their  national  capacity  ;  3.  Confederate  State  officers ; 
4.  United  States  officers  turned  traitor  officers ;  5.  Any 
one  holding  any  office  or  agency,  national,  state,  or 
municipal,  under  the  rebel  government,  provided  per- 
sons enumerated  in  classes  3,  4,  and  5  have  accepted 
office  since  secession  of  the  State,  or  have  taken  oath 
of  allegiance  to  support  the  Confederate  States ;  6.  Per- 
sons who,  owning  property  in  loyal  States,  in  the  terri- 
tories, or  in  the  District  of  Columbia,  shall  hereafter 
assist,  aid,  or  comfort  such  rebellion.  All  transfers  of 
property  so  owned  shall  be  null,  and  suits  for  it  by  such 
persons  shall  be  barred  by  proving  that  they  are  within 
the  terms  of  this  act. 
15 


Ill  nil  HON    OP   THE   i  NITED   STA1 

:     6.     \'i\  within  ited   State-,  not 

. e  named,  w bo  arc  i  I  in  armed  rebellion,  or 

aiding  and  abetting  it.  who  shall  not,  within  sixty 

proclamation  by  the  President,  "cease  to  aid, 
countenance,  and  abe!  said  rebellion,"  shall  1"'  liable  to 

all  their  property,  personal  and  real,  Beiz  sd  by  the 
President,  whose  duty  it  shall  be  to  seize  and  use  it,  oi 
the  proceeds  thereof  All  transfers  of  such  property, 
made  more  than  sixty  days  after  the  proclamation,  are 
declared  null. 

■;.  7.  To  secure  the  condemnation  and  sale  of 
seized  property,  so  a-  to  make  it  available,  proceedings 

i  shall  he  instituted  in  the  name  of  the  United 
3,  in  any  District  Court  thereof,  or  in  any  terri- 
I  court,  or  in  the  United  States  Di<trict  Court  for 
the  District  of  Columbia,  within  which  district  or  terri- 
tory the  property,  or  any  part  of  it,  may  be  found,  or 
into  which,  if  movable,  it  may  first  be  brought.  Pro- 
ings  are  to  conform  to  those  in  admiralty  or  reve- 
nue cases.  Condemnation  shall  be  as  of  enemy's  prop- 
erty, and  it  shall  belong  to  the  United  States;  the 
proceeds  thereof  to  lie  paid  into  the  treasury. 

•.  8.  Proper  powers  are  given  to  the  courts  to 
(•any  the  above  proceedings  into  effect,  and  to  establish 

forms  and  processes  and  modes  of  transferring 
condemned  property. 

t.  9.  Slave-  of  rebel-,  or  of  those  aiding  them, 
ping  and  taking  refuge  within  the  lines  of  our  army; 
-lave-'  captured  from  them  ;  .-laves  deserted  by  them, 
and  coming  under  the  control  of  the  United  States  gov- 
ernment; slaves  found  in  places  occupied  by  rebel  forces, 
and  afterwards  occupied  by  the  United  Mate-  army,  shall 
be  deemed  captive-  of  war.  and  shall  be  forever  free. 

t.   J'J.    No   fugitive  slave   shall   be  returned  to  a 


STATUTES    AGAINST    TREASON.  115 

person  claiming  him,  nor  restrained  of  his  liberty,  except 
for  crime,  or  offence  against  law,  unless  the  claimant 
swears  that  the  person  claiming  the  slave  is  his  lawful 
owner,  has  not  joined  the  rebellion,  nor  given  aid  to 
it.  No  officer  or  soldier  of  the  United  States  shall  sur- 
render fugitive  slaves. 

Sect.  11.  The  President  may  employ,  organize,  and 
use  as  many  persons  of  African  descent  as  he  pleases 
to  suppress  the  rebellion,  and  use  them  as  he  judges 
for  the  public  welfare. 

Sect.  12.  The  President  may  make  provisions  for 
colonizing  such  persons  as  may  choose  to  emigrate,  after 
they  shall  have  been  freed  by  this  act. 

Sect.  13.  The  President  is  authorized  by  proclama- 
tion to  pardon  any  persons  engaged  in  the  rebellion, 
on  such  terms  as  he  deems  expedient. 

Sect.  14.  Courts  of  the  United  States  have  full  pow- 
ers to  institute  proceedings,  make  orders,  &c,  to  carry 
the  foregoing-  measures  into  effect. 

A  resolution,  explanatory  of  the  above  act,  declares 
that  the  statute  punishes  no  act  done  prior  to  its  pas- 
sage ;  and  no  judge  or  member  of  a  State  legislature, 
who  has  not  taken  the  oath  of  allegiance  to  support 
the  constitution  of  the  Confederate  States ;  nor  shall 
any  punishment  or  proceedings  be  so  construed  as  to 
"work  forfeiture  of  the  real  estate  of  the  offender  be- 
yond his  natural  life." 

The  President's  proclamation,  in  accordance  with  the 
above  act,  was  issued  July  25th,  1862.  Thus  all  per- 
sons engaged  in  the  rebellion,  who  come  within  the 
provisions  of  the  sixth  section,  will  be  liable  to  the 
penalties  after  sixty  days  from  July  25th.  This  is  one 
of  the  most  important  penal  acts  ever  passed  by  the 
'Congress  of  the  United  States. 


1  L6  S    "i     i  in:    i  SITED   STATES. 

i  -    N'T    \   BILL  OF    \  i  r  \i\m.k.   tfOH 
\\    i  \    POST   FACTO   i  \w 

This  act  is  nol  a  hiU  of  attainder!  because  it  does  nol 
punish  the  offender  in  any  instance  with  corruption  of 

!.  ;in<l  i!  nol   declare  him.  by  act  of  legislature, 

guilty  of  treason,  inasmuch  as  the  offender's  guilt  must 

;lv  proved  and  established  by  judicial  proceedings 

re  he  can  be  sentenced.  It  is  not  an  ca  post  facto 
law,  a<  it  declares  uo  act  committed  prior  to  the  time 
when  the  lav  into  operation  to  be  a  crime,  or  to 

be  punishable  as  such.     It   provides  for  no  attainder  of 

jon,  and  therefore  for  none  of  the  penal  conse- 
quences which  might  otherwise  have  followed  from 
such  attainder. 

The  resolution,  which  is  to  be  taken  as  part  of  the 
:■  as  explanatory  of  it,  expressly  provides  that  no 
punishment  or  proceedings  under  said  act  shall  be  so 
construed  as  to  work  a  forfeiture  of  the  real  estate  of 
the  offender  beyond  his  natural  life.  Thus,  to  prevent 
our  courts  from  construing  the  sentence  of  death,  under 
involving  an  attainder  of  treason,  and   its 

sequences,  Congress  has.  in  express  terms,  provided 
that  no  punishment  or  proceeding  shall  be  so  construed 

•  work  forfeiture,  as  above  stated.  Thus  this  statute 
limits  the  constructive  penalties  which  result  from  for- 
feitures worked  by  attainders,  and  perhaps  may  be  so 
construed  as  to  confine  the  punishments  to  those,  and 
those  only,  which  are  prescribed  in  the  plain  terms  of 
the  Btatute.  And  this  limitation  is  in  accordance 
with  the  constitution,  as  understood  by  the  President, 
although  the  forfeiture  of  rebels'  real  estate  might  have 
been  made  absolute  and  unlimited,  without  exceeding 
the  constitutional  power  of  Congress  to  punish  treason* 

•  Sec  note  to  page  111. 


THE    POWER    TO    PUNISH    REBELS.  117 


CHAPTER    VII. 

THE  RIGHT  OF  CONGRESS  TO  DECLARE  THE  PUNISHMENT 
OF  CRIMES  AGAINST  THE  UNITED  STATES  OTHER  THAN 
TREASON. 

THE    NEW    CRIMES  OF  REBELLION  REQUIRE   NEW    PENAL  LAWS. 

Several  crimes  may  be  committed  not  defined  as 
treason  in  the  constitution,  but  not  less  dangerous  to 
the  public  welfare.  The  prevention  or  punishment  of 
such  offences  is  essential  to  the  safety  of  every  form 
of  government;  and  the  power  of  Congress  to  impose 
penalties  in  such  cases  cannot  be  reasonably  questioned. 
The  rights  guaranteed  in  express  terms  to  private  citi- 
zens cannot  be  maintained,  nor  be  made  secure,  without 
such  penal  legislation ;  and,  accordingly,  Congress  has, 
from  time  to  time,  passed  laws  for  this  purpose.  The 
present  rebellion  has  given  birth  to  a  host  of  crimes 
which  were  not  previously  punishable  by  any  law. 
Among  these  crimes  are  the  following  :  Accepting  or 
holding  civil  offices  under  the  Confederate  government 
violating  the  oath  of  allegiance  to  the  United  States 
taking  an  oath  of  allegiance  to  the  Confederate  States 
manufacturing,  passing,  or  circulating  a  new  and  illegal 
currency ;  acknowledging  and  obeying  the  authority 
of  a  seceded  State,  or  of  the  Confederate  States;  neg- 
lecting or  refusing  to  return  to  allegiance  and  to  lay 
down  arms  after  due  warning ;  attempting  to  negotiate 
treaties  with  foreign  powers  to  intervene  in  our  affairs; 
granting    or    taking    letters    of    marque;    conspiracy 


!  Is  BTATE8. 

nsl   the  lawful  government  ;  holding  public  m  >e1 
te  the  people  to  the  commission  of  treason  ; 
plotting  treason;  framing  and    passing  ordinances  of 
irganizing  and   forming  new  governments 
in  any  of  the  Mates,  with   the  intent   tli.it    they 
shall  become   independent   of  the   United  States,  and 
le   thereto;   the  making  of  treaties  between   the 
refusal   to  take  the  oath  of  allegiance 
United  States,  when  tendered  by  proper  author- 
ity; resistance  to  civil  process,  or  to  civil  officers  of  the 
United  State-,  when  such  resistance  is  not   so  general 
constitute  war.     Each   of  these  and    many  othei 
public  wrongs  may  be  bo  committed  as  to  avoid  the 
penalty  of  treason,  because  they  may  not  he  overt  acts 
of  levying  war.  or  of  aiding  and  comforting  the  enemy, 
which  the  offender  must  have  committed  before  he  can 
ndered  himself  liable  to  be  punished  for  treason 
as  defined  in  the  constitution.     These  and  other  similar 
offences  are  perpetrated  for  the  purpose  of  overthrow- 
ing government     Civil  war  must  inevitably  result  from 
them.     They  might  he  deemed  less  heinous  than  open 
rebellion,  if  it  were  not  certain   that  they  are  the  foun- 
tain from   which  the   streams  of  treason  and  civil  war 
How.  sweeping  the   innocent  and   the  guilty  with 
tless  tide  onward  to  inevitable  destruction. 

UPTfi    rO  OVERTURE    GOVERNMENT   SHOULD    BE   PUNISHED. 

Of  the  many  atrocious  misdeeds  which  are  pre- 
liminary to  or  contemporaneous  with  treason,  each  and 
all  may  he  and  should  he  punishable  by  law.  It  is  by 
no  mean-  desirable  that  the  punishment  of  all  of  them 
should  be  by  death,  but  rather  by  that  penalty,  which, 
depriving  the    criminal  of  the   means  of  doing  harm, 


THE  POWER  TO  PUNISH  REBELS.  119 

will  disgrace  him  in  the  community  he  has  dishonored. 
Imprisonment,  fines,  forfeitures,  confiscation,  are  the 
proper  punishments  for  such  hardened  criminals,  be- 
cause imprisonment  is  a  personal  punishment,  and 
fines,  forfeitures,  &c,  merely  transfer  the  property  of 
the  offender  to  the  public,  as  a  partial  indemnity  for 
the  wrong  he  has  committed. 

When  the  terrible  consequences  of  the  crimes  which 
foment  civil  war  are  considered,  no  penalty  would  seem 
too  severe  to  expiate  them.  But  it  has  been  erro- 
neously suggested  that,  as  the  levying  of  war  —  treason 
— itself  is  not  punishable  by  depriving  traitors  of  more 
than  a  life  estate  in  their  real  estate.,  even  though  they 
are  condemned  to  death,  it  could  not  have  been  the 
intention  of  the  framers  of  the  constitution  to  punish 
any  of  the  crimes  which  may  originate  a  civil  war,  by 
penalty  equally  severe  with  that  to  which  they  limited 
Congress,  in  punishing  treason  itself.  A  lower  offence, 
it  is  said,  should  not  be  punished  with  more  severity 
than  a  higher  one.  This  objection  would  be  more 
plausible  if  the  power  to  punish  treason  were  in  fact 
limited.  But,  as  has  been  shown  in  a  previous  chapter, 
such  is  not  the  fact.:i: 

ACT    OF  1SG2,  SECTION  VI.,  DOES    NOT  PURPORT    TO    PUNISH   TREASON. 

If  the  penalty  of  death  be  not  inflicted  on  the  guilty, 
and  if  he  be  not  accused  of  treason,  no  question  as  to 
the  validity  of  the  statute  could  arise  under  this  clause 
of  the  constitution  limiting  the  effect  of  attainders 
of  treason.     No  objection  could  be   urged   against  its 

*   See  Chap.  V.  page  93. 


120  -ill.    BTAl 

validity  on  the  ground  of  tta  forfeiting  or  confiscating 
all  tin-  property  of  the  offender,  <>r  of  its  depriving 
him  of  liberty  by  imprisonment,  or  of  its  exiling  bim 
from  the  country. 

i  6  <>f  the  act  of  1 862  'In.-  in.!  impose  the 
penalty  <>f  death,  bu!  it  provides  that  if  rebels  in  anus 
shall  not.  within  sixty  days  after  proclamation  by  the 
to  aid  ami  abet  the  rebellion,  ami 
return  to  their  allegiance,  they  shall  lie  Liable  to  have 
all  their  property  seized  ami  used  for  the  benefit  of  the 
country. 

Suppose  the  rebels  in  arms  refuse  to  obey  the  procla- 
mation.ami  neglect  or  refuse  to  return  to  their  allegiance; 
the  mere  non-performance  of  the  requisition  of  this  act 
.  or  aiding  and   comforting  the  enemy. 
technically  considered,  and  so  not  treason  —  although, 
if  they  go  on  to  perforin  overt  act-,  in  aid  of  the  rebels, 
will  he  treasonable.      Will  it  be  denied  that  the 
rebels  in  arms  ought  to  be  required  by  law  to  return 
to    their    allegiance     and     cease     rebellion?      If    their 
refusal  to  do  so  is  not  technically  treason,  ought  they 
not  to  be   liable'   to  punishment  for  violating  the  law? 
1-    any   degree    of  pecuniary   loss  too  severe    for  those 
who  will  continue  at  war  with  their  country  after  warn- 
and  proclamation,  if  their  lives  are  not  forfeited? 

LEGAL    COKSTKUCTIOU   OF  THE  ACT  OF   1862. 

What  will  be  the  construction  put  upon  section  6th 
of  the  Aet  of  July  17.  ch.  195,  L862,  when  taken  in 
connection  with  the  joint  resolution  which  accompanied 
it.  is  noi  -<>  certain  as  it  should  be.  The  language  of 
the  last  clause  in  that  resolution  is,  "  Nor  shall  any  pun- 
ishment or  proceedings,  under  said  Act.be  so  construed 


THE    POWER    TO    PUNISH    REBELS.  121 

as  to  work  a  i  forfeiture '  of  the  real  estate  of  the  offend- 
er beyond  his  natural  life."  There  is  no  forfeiture  in 
express  terms  provided  for  in  any  part  of  the  Act. 
The  punishment  of  treason,  in  the  first  section,  is  either 
death  and  freedom  of  slaves,  or  imprisonment,  fine,  and 
freedom  of  slaves.  The  judgment  of  death  for  treason 
is  the  only  one  which  could,  even  by  the  common  law, 
have  been  so  construed  as  to  "  work  any  forfeiture." 
It  may  have  been  the  intention  of  Congress  to  limit 
the  constructive  effect  of  such  a  judgment.  But  the 
words  of  the  resolution  are  peculiar ;  they  declare  that 
no  "  proceedings  "  under  said  act  shall  be  so  construed 
as  to  work  a  forfeiture,  &c.  Then  the  question  will  arise 
whether  the  "proceedings"  (authorized  by  section  6, in 
which  the  President  has  the  power  and  duty  to  seize 
and  use  all  the  property  of  rebels  in  arms  who  refuse, 
after  warning,  to  return  to  their  allegiance)  are  such 
that  a  sale  of  such  real  estate,  under  the  provisions  of 
sections  7  and  '  8,  can  convey  any  thing  more  than  an 
estate  for  the  life  of  the  offender  ?  But  the  crime  pun- 
ished by  section  6  is  not  the  crime  of  treason;  and 
whether  there  be  or  be  not  a  limitation  to  the  power 
of  the  legislature  to  punish  that  crime,  there  is  no  limit 
to  its  power  to  punish  the  crime  described  in  this 
section.* 

Forfeiture  and  confiscation  of  real  and  personal 
estates  for  crimes,  when  there  was  and  could  have  been 
no  treason,  were  common  and  familiar  penal  statutes  in 
several  States  or  colonies  when  the  constitution  was 
framed.  Many  of  the  old  tories,  in  the  time  of  the 
revolution,  were  banished,  and  their  real  estate  confis- 
cated, without    having   been  tried  for  or  accused  of 

*   See  Note,  page  111, United  States  v.   Latham. 

10 


122  3TITTJTI0N    OF   THE    UNITED    BTA 

zing  incurred  any  forfeiture  by  the  laws 
against  treason.     Such  was  the  case  in  South  Carolina 

in    ITT'  In    that    State,  one   Bel  of  laws  was    in  force 

against  treason,  the  punishmenl  of  which  was  forfeiture 
Another  set  of  laws  were  confisca- 
tion Linsl  tory  refugee*  who  had  committed  no 
treason.  These  distinctions  were  familiar  to  those  who 
formed  the  constitution,  and  they  used  language  re- 
lating to  these  subjects  with  technical  precision. 

THE   SEVERITY   OF  DIFFERENT    PI  NISHMENTS    COMPARED. 

Forfeiture  and  confiscation  are,  in  the  eve  of  the  law. 
ire  punishments  than  death:  they  arc  in  effect 
lines,  to  the  extent  to  which  the  criminal  is  capable  of 
paying  them.  It  would  not  scorn  to  he  too  sev< 
punishment  upon  a  person  who  seeks,  with  anus  in  Ids 
hands,  to  destroy  your  life,  to  steal  or  cany  away  your 
property,  to  subvert  3*our  government,  that  he  should 
he  deprived  of  his  property  by  confiscation  or  line  to 
any  amount  he  could  pay.  Therefore,  as  the  provisions 
ii  6,  which  would  authorize  the  seizure  and 
appropriation  of  rebel  real  estate  to  public  use,  are  not 
within  the  prohibitions  of  Art.  111.  Sect.  3  of  the  con- 
stitution, it  is  much  to  he  regretted  that  the  joint  reso- 
lution of  Congress  should  have  heen  so  worded  as  to 
throw  a  doubt  upon  the  construction  of  that  part  of 
the  if  not  to  paralyze  its  effect  upon  the  only 

class  of  rebel   property  which  they  cannot  put  out  of 
the  leach  of  government,  viz.,  their  real  estate. 


e  Willis  v.  Martin,  '1  Bay  20.     See  also  Hinzleman  v.  Clarke  and 
Al..  Coxe  N.  J.,  17:>.j. 


THE    POWER    TO    PUNISH    REBELS.  123 

THE  SIXTH  SECTION  OF  THE  CONFISCATION  ACT  OF  18f>2  IS  NOT 
WITHIN  THE  PROHIBITION  OF  THE  CONSTITUTION,  ARTICLE  in. 
SECTION  III. 

Congress  cannot,  by  giving  a  new  name  to  acts  of 
treason,  transcend  the  constitutional  limits  in  declaring 
its  punishment.  Nor  can  legislation  change  the  true 
character  of  crimes.  Hence  some  have  supposed  that 
Congress  has  no  right  to  punish  the  most  flagrant  and 
outrageous  acts  of  civil  war  by  penalties  more  severe 
than  those  prescribed,  as  they  say,  for  treason.  Since  a 
subject  must  have  performed  some  overt  act,  which  may 
be  construed  by  courts  into  the  "  levying  of  war,"  or  "  aid- 
ing the  enemy,"  before  he  can  be  convicted  of  treason, 
it  has  been  supposed  that  to  involve  a  great  nation  in 
the  horrors  of  civil  war  can  be  nothing  more,  and  noth- 
ing  else,  than  treason.  This  is  a  mistake.  The  consti- 
tution does  not  define  the  meaning  of  the  phrase 
"  levying  war."  Is  it  confined  to  the  true,  and  genuine 
signification  of  the  words,  namely, "  that  to  levy  war  is 
to  raise  or  begin  war  ;  to  take  arms  for  attack  ; "  or  must 
it  be  extended  to  include  the  carrying  on  or  waging 
war,  after  it  has  been  commenced  ?*  The  crime  com- 
mitted by  a  few  individuals  by  merely  keying  war,  or 
beginning  without  prosecuting  or  continuing  armed 
resistance  to  government,  although  it  is  treason,  may  be 
immeasurably  less  than  that  of  carrying  on  a  colossal 
rebellion,  involving  millions  in  a  fratricidal  contest. 
Though  treason  is  the  highest  'political  crime  known  to 
the  codes  of  law,  yet  wide-spread  and  savage  rebellion 

*  To  levy  war  is  to  raise  or  begin  war ;  to  take  arms  for  attack ;  to 
attack.  —  Webster's  Quarto  Diet. 

To  levy  is,  1.  To  raise,  as  a  siege.  2.  To  raise  or  collect;  to  gather. 
3.  To  raise,  applied  to  war.  — Worcester's  Quarto  Diet. 


[24  N    OF  Tin:   i  \UTh    3TATE8 

ber  crime  n  iciety  ;  for  it  embrace 

a  cluster  of  atrocio lis  wi  f  which  the  attack  upon 

rnment  —  treason  -is  but  one.  Although  there 
can  lie  no  treason  unless  the  culprit  levies  war,  or  aids 
the  enemy,  yef  ii  by  no  means  follows  thai  all  acts  of 
carrying  on  a  war  once  levied  are  onJy  acts  of  treason. 
Treason  is  the  threshold  of  war  j  the  traitor  passes  over 
it  to  new  and  deeper  guilt  Be  ought  to  suffer  punish- 
ment proportioned  to  his  crimes. 

It   must  also  be  remembered,  that  the  constitution 
not  indicate  that    fines,  forfeitures,  confiscations, 
outlawry,  or  imprisonment  arc  "severer  penalties  than 
.."     The  law  has  never  so  treated  them.     Nor  is 
there  any  limit  to   the    power  of  Congress  \^  punish 
as  has  been    shown   in   a  previous  chapter." 
Who  will  contend  thai  the  crime  of  treason  is  in  morals 
more  wicked,  in   its  tendencies  more  dangerous,  or   in 
suits  more  deadly  than  the  conspiracy  by  which  it 
was  plotted   and   originated?     Yet  suppose   the  con- 
spirator is  artful  enough  not  to  commit  any  overt  act 
in  presence  of  two  wit  a  be  cannot  be  convicted 

of  treason,  though  he  may  have  been  far  more  guilty 
many    though! less    persons  who   have   been   put 
forward  to  execute  the  "overt  acts,"  and  have  thereby 
ime  punishable  as  traitors.     Suppose  on  com- 

bomicide;  he  may  be  accused  of  assault  and  battery, 
or  assault  with  intenl  to  kill,  or  justifiable  homicide, 
or  manslaughter,  or  murder  in  either  degree.  Suppose 
the  constitution  limited  the  punishment  of  wilful  mur- 
der to  the  death  of  the  criminal  and  forfeit  ure  of  his  real 
and  persona]  estate  for  life;  would  any  person  contend 
that  neither  of  the  other  above-mentioned  crimes  could 

•   Bee  Chap.  V.  p.  93. 


THE   POWER    TO    PUNISH    REBELS.  125 

be  punished,  unless  the  criminal  were  convicted  of  wil- 
ful murder?  If  he  had  committed  murder,  he  must 
have  committed  all  the  crimes  involved  in  murder. 
He  must  have  made  an  assault  with  intent  to  kill; 
and  he  must  have  committed  unjustifiable  homicide,  or 
manslaughter.  If  the  government  should,  out  of  leni- 
ency, prosecute  and  convict  him  of  manslaughter,  and 
impose  upon  him  a  penalty  of  fine,  or  confiscation  of 
his  real  and  personal  estate,  instead  of  sentence  of 
death,  would  any  one  say  that  the  penalty  imposed  was 
severer  than  death  ?  or  that  murder  was  legislated  into 
any  other  crime  ?  or  that  any  other  crime  was  legis- 
lated into  murder  ?  Many  crimes  of  different  grades 
may  coexist,  and  culminate  in  one  offence.  It  is  no 
sign  of  undue  severity  to  prosecute  the  offender  for  one 
less  than  the  highest.  The  same  course  of  crime  may 
violate  many  of  the  duties  the  loyal  citizen  owes  to  his 
country.  To  pass  laws  declaring  the  penalty  for  each 
and  all  of  these  crimes  does  not  transcend  the  true 
scope  of  the  criminal  legislation  of  Congress,  where  an 
offender  has  brought  upon  his  country  the  horrors  of 
civil  war  by  destroying  the  lives  of  those  who  have 
given  him  no  cause  of  offence,  by  violating  the  rights 
of  the  living  and  the  dead,  by  heaping  upon  his  guilty 
act  the  criminality  of  a  thousand  assassins  and  mur- 
derers, and  by  striking  at  the  root  of  the  peace  and 
happiness  of  a  great  nation ;  it  does  not  seem  unduly 
severe  to  take  from  him  his  property  and  his  life.  The 
constitution  does  not  protect  him  from  the  penalty  of 
death ;  and  it  cannot  be  so  interpreted  as  to  protect 
him  against  confiscation  of  his  real  estate. 


12C  I  ri"\   OF   Tin    DNTTl   i   .-i  \ti  a 

180N     we    CONFISCATION    i  IWB    IK    \i  iiii.ii:    PRA(  PICAL 

* » 1  - 1  B  \  I  I"N 

I  o  understand  the  practical  operation  of  the  statutes 
in  force  for  the  punishment   of  treason  and  rebel- 
lion, and  for  the  seizure  and  confiscation  of  rebel  prop- 
erty, it    is   necessary  to  observe   the   effecl    of  other 
which  regulate  the  modes  of  procedure  in  the 
l  5  courts.     Section   I   of  the  act   of  L862, 

11  as  the  aci  of  L790,  prescribes  the  pun- 
ishment of  death  for  treason;  section  '_'.  which  im; 
fines  and  penalti  ition  3,  which  adds  disqualifica- 

tion .  and.  in  fact,  all  the   penal  sections  of 

.  —  entitle   the  accused   to  a  judicial   trial. 
ai  be  made  liable  to  suffer  any  penalty,  he 
must  have   been  "pronounced   guilty  of  the  offence 
charged,"  and  he  must  have  suffered  "judgment  and 
uce  on  conviction."     The  accused  cannot  by  law- 
he  subjected  to  a  trial   unless  ho  has  previously  been 
;ted    by  a   grand  jury.     He  cannot  be   adjudged 
guilty  unless  upon  a  verdict  of  a  petty  jury,  impanelled 
according  to  law,  and  by  courts  having  jurisdiction  of 
the  person  and  of  the  alleged  offence.     A  brief  exami- 
nation ol*  the  statutes  regulating  such  proceedings  will 
show   that   treason   and   confiscation   laws  will  not  be 
likely  to  prove  effectual,  unless  they  shall  be  amended, 
or  unless  other  statutes  shall  be  so  modified  as  to  adapt 
them  to  the  present  condition  of  the  country. 

.!.    BIGHTS    OF    PERSONS    A.CCUSED   OF  TREASON. 

All  judicial  convictions  must   be  in  accordance  with 
the    !  tablishing   the  judiciary  and  regulating-  its 

proceeding-.     Whenever  a   person  accused  of  crime  is 
held  by  the  government,  not  as  a  belligerent  or  prisoner 


THE    POWER    TO    PUNISH    REBELS.  12  7 

9 

of  war,  but  merely  as  a  citizen  of  the  United  States, 
then  he  is  amenable  to,  and  must  be  tried  under  and 
by  virtue  of,  standing  laws  ;  and  all  rights  guaranteed  to 
other  citizens  in  his  condition  must  be  conceded  to  him. 

WILL  SECESSIONISTS  INDICT  AND  CONVICT   EACH  OTHER? 

No  person  can  lawfully  be  compelled  to  appear  and 
answer  to  a  charge  for  committing  capital  or  other- 
wise infamous  crimes,  except  those  arising  in  the  army 
and  navy,  when  in  actual  service,  in  time  of  war  or 
public  danger,  until  he  has  been  indicted  by  a  grand 
jury.*  That  grand  jury  is  summoned  by  the  marshal 
from  persons  in  the  district  where  the  crime  was  com- 
mitted. 

By  the  statute  of  September  24,  1789,  section  29, 
"  in  all  cases  punishable  with  death,  the  trial  shall  be 
had  in  the  county  where  the  offence  was  committed ; 
or  where  that  cannot  be  done  without  great  inconve- 
nience, twelve  petit  jurors  at  least  shall  be  summoned 
from  thence."  It  has  indeed  been  decided  that  the 
judges  are  not  obliged  to  try  these  cases  in  the  county 
where  the  crime  was  committed,  but  they  are  bound 
to  try  them  within  the  district  in  which  they  were 
perpetrated. -j- 

HOW  THE   JURIES    ARE  SELECTED,   AND   THEIR   POWERS. 

The  juries  are  to  be  designated  by  lot,  or  according 
to  the  mode  of  forming  juries  practised  in  1789,  so  far 
as  practicable  :  the  qualifications  of  jurors  must  be  the 
same  as  those  required  by  the  laws  of  the  State  where 

*   Constitutional  Amendment  V. 

t   Untied  Slates  v.  Wilson,  Baldw.  117  ;   United  States  v.  Cornell,  2  Mass. 
95-98;   United  States  v.  The  Insurgents,  3  DalL  518. 


1  28  i  ONSTITl  i  [ON    OP    mi;   i  \i  1 1  D    SI  \  I  ES, 

• 

tin-  trial  is  held,  in  order  t<>  qualifj  them  to  Berve  in 
the  highest  court  of  that  State  ;  and  jurors  shall  !»• 
returned  from  such  parts  of  the  district,  from  time  to 
time,  as  the  court  shall  direct,  so  as  to  be  most  favor- 
able t<>  an  impartial  trial.  Ami  if  so  many  jurors  are 
challenged  as  to  prevenl  the  formation  of  a  full  jury, 
lor  want  of  numbers,  the  panel  shall  be  completed  from 
tlir  bystandi 

BTATB    BIGHTS     LND    SECESSION    DOCTEINES    I  \   THE   JUET    BOOM. 

The  jury  are  by  law  judges  of  the  law  and  the  fact, 

according  to  the  opinion  of  many  eminent  lawyers 
and  judges.  Whether  this  be  so  or  not,  their  ver- 
dict, being  upon  the  law  and  the  fact,  in  a  criminal 
.  they  become  in  effect  judges  of  law  and  fact. 
Suppose  that  the  judge  presiding  at  the  trial  is.  honest 
and  loyal,  ami  that  the  jury  IS  composed  of  men  who 
believe  thai  loyalty  to  the  State  is  paramount  to  loy- 
alty to  the  United  States  5  or  that  the  States  had,  and 
have,  a  lawful  right  to  secede  from  the  Union.  "What- 
ever the  opinions  of  the  judge  presiding  in  the  United 

s  court  might  he  on  these  questions,  he  would  have 
no  power  to  root  out  from  the  jury  their  honest  belief, 
that  obedience  to  the  laws  of  their  own  seceding  State 
is  not,  and  cannot  be,  treason.     The  first  step  towards 

in--  a  verdict  would  he  to  destroy  the  belief  of 
the  jury  in  these  doctrines  of  Stale  rights,  paramount 
State  sovereignty,  and  the  right  of  secession.     To  de- 

the  issue,  according  to  the  conscientious  judgment 
of  the  jurymen  upon  the  facts  and  the  law.  would  re- 
.paie  to  find  a  verdict  against  the  United  States. 


THE   POWER   TO    PUNISH   REBELS.  129 

SYMPATHY. 

But  this  is  not  the  only  difficulty  in  the  operation 
of  this  statute.  The  grand  jurors  and  the  petit  jury 
are  to  be  drawn  from  those  who  are  neighbors,  and 
possibly  friends,  of  the  traitors.  The  accused  has  the 
further  advantage  of  knowing,  before  the  time  of  trial, 
the  names  of  all  the  jurors,  and  of  all  the  witnesses  to  be 
produced  against  him ;  he  has  the  benefit  of  counsel,  and 
the  process  of  the  United  States  to  compel  the  attend- 
ance of  witnesses  in  his  behalf*  How  improbable  is  it 
that  any  jury  of  twelve  men  will  be  found  to  take  away 
the  lives  or  estates  of  their  associates,  when  some  of  the 
jurymen  themselves,  or  their  friends  and  relatives  or 
debtors,  are  involved  in  the  same  offence !  Could  any 
judge  reasonably  expect  a  jury  of  horse  thieves  to  con- 
vict one  of  their  own  number,  when  either  of  the  jury- 
men might  be  the  next  man  required  to  take  his  turn 
in  the  criminal  box  ?  Under  the  present  state  of  the 
law,  it  is  not  probable  that  there  will  ever  be  a  convic- 
tion, even  if  laws  against  treason,  and  those  which  con- 
fiscate property,  were  not  unpopular  and  odious  in  a 
community  against  whom  they  are  enacted.  When  an 
association  of  traitors  and  conspirators  can  be  found  to 
convict  each  other,  then  these  statutes  will  punish  trea- 
son, but  not  sooner. 

LAWS    ARE    MOST    EFFECTIVE    "WHICH    REQUIRE     NO    REBEL  TO    AD- 
MINISTER   THEM. 

Those  sections  of  the  act  of  1862,  empowering  gov- 
ernment to  seize  rebel  property,  real,  personal,  and 
mixed,  and  to  apply  it  to  the  use  of  the  army,  to  secure 
the  condemnation  and  sale  of  seized  property,  so  as  to 

*   Statute  of  April  30,  1790,  Sect,  29. 

17 


["ION    OP   mi     i  '■:>•  D    Bl 

liable,  and  to  authorize  proceedings  m 
conformably  to  proceedings    in   admiralty  or  revenue 
if  n  different    and   far  more  effective  char- 
acter.    Those  clauses  in   the  act   which  allow  of  the 
employment   in   the  Bervice  of  the   United  Stairs  of 
colored  persons,  so  far  as  they  may  be  serviceable,  and 
the  freeing  of  the  slaves  of  rebels,  whether  captured, 
d,  fugitive,  abandoned,  or  found  within  the  lines 
of  the  army,  may  be  of  practical  efficacy,  because  these 
sures  do  not  require  the  aid  of  any  secession  jury 
any  them  into  effe 

PI    PES    OF    LIMITATION    WILL   PROTECT  TRAITORS. 

The  statutes  limiting  the  time  during  which  rebels 

and  traitors  shall  be  liable  to  indictment  ought  also  to  be 
considered.  By  the  act  of  1700,  no  person  can  be  pun- 
ished unless  indicted  for  treason  within  three  years  after 
the  treason  was  committed,  if  punishable  capitally;  nor 
unless  indicted  within  two  years  from  the  time  of  com- 
mitting  any  offence  punishable  with  fine  or  forfeiture. 
Thus,  by  the  provisions  of  these  laws,  if  the  war  should 
last  two  years,  or  if  it  should  require  two  or  three  year- 
after  the  war  shall  have  been  ended  to  reestablish  reg- 
ular proceedings  in  courts,  all  the  criminals  in  the 
ceded  States  will  escape  by  the  operation  of  the  stat- 
utes of  limitations.  It  is  true,  that  if  traitors  flee  from 
justice  these  limitations  will  not  protect  them;  but  this 
ption  will  apply  to  few  individuals,  and  those  who 
flee  will  not  be  likely  to  be  caught  Unless  these  stat- 
utes are  modified,  those  who  have  caused  and  main- 
tained tin.-  rebellion  will  escape  from  punishment* 

nil   bills  have  I  luced   during  the  present  session  of  Congress 

(ISC'; 


SLAVERY.  131 


CHAPTER    VIII. 

INTERFERENCE    OF     GOVERNMENT    WITH    THE     DOMESTIC 
AFFAIRS    OF   THE    STATES. 

PARTY    PLATFORMS   CANNOT   ALTER  THE   CONSTITUTION. 

Political  parties,  in  times  of  peace,  have  often  de- 
clared that  they  do  not  intend  to  interfere  with  slavery 
in  the  States.  President  Buchanan  denied  that  govern- 
ment had  any  power  to  coerce  the  seceded  States  into 
submission  to  the  laws  of  the  country.  When  Presi- 
dent Lincoln  called  into  service  the  army  and  navy, 
he  announced  that  it  was  not  his  purpose  to  interfere 
with  the  rights  of  loyal  citizens,  nor  with  their  domes- 
tic affairs.  Those  who  have  involved  this  country  in 
bloody  war,  all  sympathizers  in  their  treason,  and  others 
who  oppose  the  present  administration,  unite  in  deny- 
ing the  right  of  the  President  or  of  Congress  to  inter- 
fere with  slavery,  even  if  such  interference  is  the  only 
means  by  which  the  Union  can  be  saved  from  destruc- 
tion. No  constitutional  power  can  be  obliterated  by 
any  denial  or  abandonment  thereof,  by  individuals,  by 
political  parties,  or  by  Congress. 

The  war  power  of  the  President  to  emancipate  ene- 
my's slaves  has  been  the  subject  of  a  preceding  chapter. 
Congress  has  power  to  pass  laws  necessary  and  proper 
to  provide  for  the  defence  of  the  country  in  time  of  war, 
by  appropriating  private  property  to  public  use,  with 
just  compensation  therefor,  as  shown  in  Chapter  I. ; 
also  laws  enforcing  emancipation,  confiscation,  and  all 
other  belligerent  rights,  as  shown  in  Chapter  II. ;  and 
it  is  the  sole  judge  as  to  what  legislation,  to  effect 
these  objects,  the  public  welfare  and  defence  require; 


1 32  nm  pion  op  the  united  btau  -. 

it  may  enact  laws  abolishing  Blavery,  whenever  slavery, 
ceasing  I  n   private  and  domestic   relation, 

imes  a  matter  of  national  concern,  and  the  public 
welfare  and  defence  cannot  be  provided  for  and  secured 
without  interfering  with  slaves,  Laws  passed  lor  that 
purpose,  in  good  faith,  against  belligerent  subjects,  not 
being  within  any  express  prohibition  of  the  constitu- 
tion, cannot  lawfully  l"'  declared  void  by  any  depart- 
ment of  government  Reasons  and  authority  for  these 
propositions  have  been  stated  in  previous  chapters. 

DOMESTIC    in-  M  n   riON8. 

A.mong  the  errors  relating  to  slavery  which  have 
found  their  way  into  the  public  mind,  —  errors  traceable 
directly  to  a  class  of  politicians  who  are  now  in  open 
rebellion, —  the  most  important  is,  that  Congress  has  no 
right  I"  interfere  in  any  way  with  slavery.  Their  assump- 
tion is,  that  the  States  in  which  slaves  are  held  are 
alone  competent  to  pass  any  law  relating  to  an  institu- 
tion which  belongs  exclusively  to  the  domestic  affairs 
of  the  States,  and  in  which  Congress  has  no  right  to 
interfere  in  any  way  whatever. 

From  a  preceding  chapter, (see  page  17,)  it  will  be  seen, 
that  if  slaves  are  property,  property  can  be  interfered  with 
under  the  constitution  ;  if  slavery  is  a,  domestic  institution, 
\formomsm  or  apprenticeship  is.  each  of  them  can  law- 
fully be  interfered  with  and  annulled.  But  slavery  has 
a  double  aspect  So  long  as  it  remains  in  truth  "  domes- 
tic" that  is  to  Bay,  according  to  Webster's  Dictionary, 
u pertaining  to  house  or  home"  so  long  government  cannot 
be  affected  by  it,  and  have  no  ground  for  interfering 
with  it  ;  when,  on  the  contrary,  it  no  longer  pertains 
only  to  house  and  home,  but  enters  into  vital  questions 


SLAVERY.  133 

of  war,  aid  and  comfort  to  public  enemies,  or  any  of 
the  national  interests  involved  in  a  gigantic  rebellion  ; 
when  slavery,  rising  above  its  comparative  insignifi- 
cance as  a  household  affair,  becomes  a  vast,  an  over- 
whelming power  which  is  used  by  traitors  to  overthrow 
the  government,  and  may  be  used  by  government  to 
overthrow  traitors,  it  then  ceases  to  be  merely  domestic ; 
it  becomes  a  belligerent  power,  acting  against  the  "  public 
welfare  and  common  defence."  No  institution  con- 
tinues to  be  simply  "  domestic  "  after  it  has  become  the 
effective  means  of  aiding  and  supporting  a  public 
enemy. 

When  an  "  institution "  compels  three  millions  of 
subjects  to  become  belligerent  traitors,  because  they 
are  slaves  of  disloyal  masters,  slavery  becomes  an  affair 
which  is  of  the  utmost  public  and  national  concern.  But 
the  constitution  not  only  empowers,  but,  under  certain 
contingencies,  requires  slavery  in  the  States  to  be  inter- 
fered with.  No  one  who  will  refer  to  the  sections  of 
that  instrument  here  cited,  will  probably  venture  to 
deny  the  power  of  Congress,  in  one  mode  or  another, 
to  interfere  for  or  against  the  institution  of  slavery. 

CONGRESS  MAY    PASS    LAWS  INTERFERING  FOR    THE  PRESERVATION 
AND   PROTECTION   OF   SLAVERY  IN   THE    STATES. 

Art.  IV.  Sect.  2,  required  that  fugitive  slaves  should  be 
delivered  up,  and  the  fugitive  slave  laws  were  passed  to 
carry  this  clause  into  effect. 

Art.  I.  Sect.  9,  required  that  the  foreign  slave  trade 
should  not  be  interfered  with  prior  to  1808,  but  allowed 
an  importation  tax  to  be  levied  on  each  slave,  not  ex- 
ceeding ten  dollars  per  head. 

Art.  V.  provided  that  no  amendment  of  the  constitu- 


134  nil  PION    OP    nil.   i  \; .    D    BTATB8, 

should  be  made,  prior  to  L  808,  affecting  the  pre- 
ceding clause. 

Art.  1.  Sect,  l'  provides  thai  three  fifths  of  all  Blave 
shall  be  included  in  representative  numbers. 

}S   MLAY    INTERFERE    LGAIN8T    BLAVERY    IN    THE    BTA 

A  •     !.    Seel    v.     Congress    has   power   to    regulate 
commerce  with  foreign  nations,  and  among  the  se^ 

3,  and  with  the   Indian  tribes.     Under  this  clause 

3s  can  in  efifeel  prohibit  the  interstate  slave  trade, 

and  -  laws  diminishing  or  destroying  the  value 

slaves   in   the  border  States,  and  practically  abolish 

y  in  those  Stat 

CONGRESS    MAY    INTERFERE   WITH   BLAVERY    BY   CALLING    DPOH    llli; 
3UBJECTS,  TO   ENTEB  MILITARY  SERVICE. 

Art  I.  Sect.  8.  Congress  has  the  power  to  declare 
war  and  make  rules  for  the  government  of  land  and 
naval  forces,  and  under  this  power  to  decide  who  shall 
the  miMia  of  the  United  States,  and  to  enrol  and 
compel  into  the  service  of  the  United  States  all  the 
-  well  as  their  masters,  and  thus  to  interfere 
with  slavery  in  the  States. 

MAY   INTERFERE  WITH   SLAVERY   IN   THE   STATES   BY  CUT- 
TING   OFF  THE  SUPPLY  OP   SLAVES    TO    8UCH    STATES. 

The  law  now  prohibiting  the  importation  of  slaves, 
and  making  Blave  trading  piracy,is  an  interference  with 
slavery,  by  preventing  their  introduction  into  the 
slave  States.  So  also  is  the  treaty  with  England  to 
suppress  the  Blave  trade,  and  to  keej  an  armed  naval 
force  on  the  coast  of  Africa. 

In  case  of  servile  insurrection  against  the  laws  and 


SLAVERY.  135 

authority  of  the  United  States,  the  government  are 
hound  to  interfere  ivitli  slavery,  as  much  as  in  an  insurrec- 
tion of  their  masters,  which  may  also  require  a  similar 
interference.  The  President,  with  the  advice  and  con- 
sent of  the  Senate,  has  the  power  to  make  treaties ; 
and,  under  the  treaty-making  power,  slavery  can  be 
and  has  been  interfered  with.  In  the  last  war  with 
Great  Britain,  a  treaty  was  made  to  evacuate  all  the 
forts  and  places  in  the  United  States  without  carrying 
away  any  of  the  slaves  who  had  gone  over  to  them  in 
the  States.  Congress  then  interfered  to  sustain  the 
institution  of  slavery,  for  it  was  only  by  sustaining 
slavery  that  this  government  could  claim  indemnity  for 
slaves  as  property.  The  treaty-making  power  may  abolish 
slavery  in  the  whole  country,  as,  by  Art.  VI.,  the  con- 
stitution, the  laws,  and  all  treaties  made  or  which  shall 
be  made  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land.  A  clause  in  any 
treaty  abolishing  slavery  would,  ipso  facto,  become  the 
supreme  law  of  the  land,  and  there  is  no  power  whatr 
ever  that  could  interfere  with  or  prevent  its  operation. 
By  the  treaty-making  power,  any  part  of  the  country 
burdened  with  slavery,  and  wrested  from  us  by  con- 
quest, could  be  Ceded  to  a  foreign  nation  who  do  not 
tolerate  slavery,  and  without  claim  of  indemnity.  The 
l^rinciple  is  well  established  that  "  the  release  of  a 
territory  from  the  dominion  and  sovereignty  of -the 
country,  if  that  cession  be  the  result  of  coercion  or 
conquest,  does  not  impose  any  obligation  upon  the 
government  to  indemnify  those  who  may  suffer  loss  of 
property  by  the  cession." :i: 

*   1  Kent  Com.  178. 


I  CONSTITl  HON    OF    nil'    i  NIT]  D   SI  \n>. 

Th  of  New  York  had  granted  to  her  own  citi« 

many  titles  to  real  estate  lying  in  thai  pari  of  her 
territory  now  called  Vermont  Vermont  separated 
from  New  fork,  and  declared  itself  an  inde- 
pendent :  It  maintained  its  claims  to  such  an 
:it.  thai  New  York,  by  acl  of. Inly  II.  L789,  was 
enforced  to  empower  commissioners  to  assent  to  its 
independence ;  I»ui  refused  to  compensate  persons 
claiming  lands  under  grant  from  New  York,  though 
they  were  deprived  of  them  by  Vermont.  The  ground 
taken  by  the  legislature  was,  that  the  government  was 
not  required  to  assume  the  burden  of  losses  produced  by 
conquest  or  by  the  violent  dismemberment  of  the  State 

Supposing  England  and  France  should,  by  armed  in- 
tervention, compel  the  dismemberment  of  the  United 
States,  and  the  cession  of  the  slave  States  to  them  as 
Conquered  territory;  and  that  the  laws  of  the  con- 
querors  allowed  no  slaveholding.  Could  any  of  the 
citizens  of  slave  States,  who  might  reside  in  the  free 
States,  having  remained  loyal,  but  having  lost  their 
slaves,  make  just  legal  claim  for  indemnity  upon  the 
government?     Certainly  not. 

Other  instances  may  be  cited  in  which  Congress 
has  the  power  and  duty  of  interference  in  the  local 
and  dome-tic  concerns  of  States,  other  than  those 
relating  to  slavery.*     Chief  Justice  Taney  says, — 

•'.M"i...  tution  of  the  United  States,  as  far  as  it  has 

provided  for  an  emergency  of  ilii^  kind,  ami  authorized  the  general 
anient  to  interfere  in  the  domestic  concerns  of  a  State,  has 
treated  the  subject  as  political  in  its  nature,  and  placed  the  power 
in  the  hands  of  thai  department  Art.  IV.  Sect.  i  of  the  constitution 
oi' \)\<'.  United  States  provides  that  the  United  States  shall  guarantee  to 

*  Luther  v.  Borden,  7  How.  -42. 


SLAVERY.  16) 

every  State  in  the  Union  a  republican  form  of  government,  and  shall  pro- 
tect each  of  them  against  invasion,  and,  on  the  application  of  the  legisla- 
ture, or  of  the  executive  when  the  legislature  cannot  be  convened,  against 
domestic  violence.  Under  this  article  of  the  constitution  it  rests  with 
Congress  to  decide  what  government  is  the  established  one  in  a  State. 
For,  as  the  United  States  guarantees  to  each  State  a  republican  gov- 
ernment, Congress  must  necessarily  decide  what  government  is  estab- 
lished, before  it  can  determine  whether  it  is  republican  or  not.  And 
when  senators  and  representatives  of  a  State  are  admitted  into  the  coun- 
cils of  the  Union,  the  authority  of  the  government  under  which  they  are 
appointed,  as  well  as  its  republican  character,  is  recognized  by  the 
proper  constitutional  authority,  and  its  decision  is  binding  upon  every 
other  department  of  the  government,  and  could  not  be  questioned  in 
a  judicial  tribunal.  So,  too,  as  relates  to  the  clause  in  the  above-men- 
tioned article  of  the  constitution,  providing  for  cases  of  domestic 
violence.  It  rested  with  Congress,  too,  to  determine  the  means  pi-oper 
to  be  adopted  to  fulfil  this  guaranty." 

Suppose,  then,  that  for  the  purpose  of  securing  "domes- 
tic tranquillity  "  and  to  suppress  domestic  violence,  Congress 
should  determine  that  emancipation  of  the  slaves  was  a 
necessary  and  proper  means,  it  would  be  the  duty  of  Con- 
gress to  adopt  those  means,  and  thus  to  interfere  with 
slavery  *  If  a  civil  war  should  arise  in  a  single  State 
between  the  citizens  thereof,  it  is  the  duty  of  Congress 
to  cause  immediate  interference  in  the  domestic  and  local 
affairs  of  that  State,  and  to  put  an  end  to  the  war  ; 
and  this  interference  may  be  by  force  of  arms  and  by 
force  of  laws ;  and  the  fact  that  the  cause  of  quarrel  is 
domestic  and  private,  whether  it  be  in  relation  to  a  pro- 
posed change  in  the  form  of  government,  as  in  Dorr's 
rebellion/1'  or  a  rebellion  growing  out  of  any  other 
■domestic  matter,  the  constitution  authorizes  and 
requires  interference  by  the  general  government. 
Hence  it  is  obvious  that  if  slaves  be  considered  prop- 

*  See  Luther  v.  Borden,  7  How. 

18 


1  IS  noN  "i    nij    i  niti  d  bta  i 

erty,  and  if  the  regulation  of  slaverj  in  the  Stales  lie 
deemed  in  some  aspects  one  of  the  domestic  affairs  of 
the  States  where  it  is  tolerated,  yel  these  facts  consti- 
tute no   reason  \\h\  such   property  nuvj  no1   be  inter- 

i  with,  and  Blavery  dealt  with  by  government 
to  the  emergencies  of  the  time,  whenever 
slavery  assumes  a  new  aspect,  and  rises  from  its  private 
and  domestic  character  to  become  a  matter  of  national 
concern,  and  imperils  the  safetj  and  preservation  of 
the  whole  country.  We  are  imi  to  lake  our  opinions 
as  to  the  extent  or  limit  of  the  powers  contained  in  (he 
constitution  from  partisans,  or  political  parties,  nor  even 
from  the  dicta  of  political  judges.  We  should  examine 
that  instrument  in  the  light  of  history  ami  of  reason; 
but  when  the  language  is  plain  ami  clear,  we  need  no 
historical  researches  to  enable  us  to  comprehend  its 
meaning.  When  the  interpretation  depends  upon  tech- 
nical law,  then  the  contemporary  law  writers  must  be 
consulted.  The  question  as  to  the  meaning  of  the  con- 
stitution   depends    upon    what    the   people,  the    plain 

le  who  adopted  it,  intended  and  meant  at  the 
time  of  its  adoption. 

AUTHORITATIVE  CONSTRUCTION  or    Tin;   MEANING    OP    THE    CON- 
STITUTION. 

The  conclusive  authority  on  its  interpretation  is  the 

.limit   itself.     When   questions  have  arisen  under 

that   instrument,  upon  which   the  Supreme  Court  have 

.   and   one  which   they  had   a  right  to  decide, 

their  opinion   is,  lor  the   time  being,  the  supreme  au- 

ity,  and  remains  so  until   their  views   are  changed 

and  new  ones  announced;  and  as  often  as  tlia  Supreme 

l  mge  their  judgment-,  so  often  the  authoritative 


SLAVERY.  139 

interpretation  of  the  constitution  changes.  The  Su- 
preme Court  have  the  right  to  alter  their  opinions  e\  ery 
time  the  same  question  is  decided  by  them ;  and  as 
new  judges  must  take  the  place  of  those  whose  offices 
are  vacated  by  death,  resignation,  or  impeachment,  it  is 
not  unlikely  that  opinions  of  the  majority  of  the  court 
may,  upon  constitutional  as  well  as  upon  other  questions, 
be  sometimes  on  one  side  and  sometimes  on  the  other. 

Upon  political  discussions,  such  as  were  involved  in 
the  Drecl  Scott  case,  the  judges  are  usually  at  variance 
with  each  other;  and  the  view  of  the  majority  will 
prevail  until  the  majority  is  shifted.  The  judges  are 
not  legally  bound  to  adhere  to  their  own  opinions, 
although  litigants  in  their  courts  are.  Whenever  the 
majority  of  the  court  has  reason  to  overrule  a  former 
decision,  they  not  only  have  the  right,  but  it  is  their 
duty,  to  do  so. 

The  opinions  of  the  framers  of  the  constitution  are 
not  authority,  but  are  resorted  to  for  a  more  perfect 
understanding  of  the  meaning  they  intended  to  convey 
by  the  words  they  used ;  but  after  all,  the  words  should 
speak  for  themselves  ;  for  it  was  the  language  in  which 
that  instrument  was  worded  that  was  before  the  people 
for  discussion  and  adoption.  We  must  therefore  go 
back  to  that  original  source  of  our  supreme  law,  and 
regard  as  of  no  considerable  authority  the  platforms 
of  political  parties  who  have  attempted  to  import  into 
the  constitution  powers  not  authorized  by  fair  interpre- 
tation of  its  meaning,  or  to  deny  the  existence  of 
those  powers  which  are  essential  to  the  perpetuity  of 
the  government. 

A  political  party  may  well  waive  a  legal  constitu- 
tional right,  as  matter  of  equity,  comity,  or  public  pol- 


1  in  -mi  ii"\   OF    nil    i  mm. i' 

i<  \  ;  ami   this  waiver  ma\    take  the  form  of  a  denial 
of  tl  ince  of  ilif  power  thus  waived.     In  this 

manner  Mr.   Douglas  not   merely  waived,  but  denied, 

the  power  of  Congress  to  interfere  with  slavery  in  the 
ten":  and  in  the  same  wav  members  of  tin-  Re« 

publican  party  bave  disclaimed  the  right,  in  time  of 
peace,  to  interfere  w  ith  slavery  in  the  States  ;  bul  such 
disclaimers,  made  fur  reasons  of  state  policy,  are  not 
warded  as  enlarging  or  diminishing  the  rights 
or  duties  devolved  on  the  departments  of  govern- 
ment, by  a  lair  and  liberal  interpretation  of  all  the  pro- 
visions of  ill--  constitution. 

Rising  above  the  political  platforms,  the  claims  and 
disclaimers  of  Federalists,  Democrats.  Whigs,  Republi- 
cans, and  all  other  parties,  and  looking  upon  the  con- 
stitution as  designed  to  give  the  government  made  by 
the  people,  lor  the  people,  the  powers  necessary  to  its 
own  preservation,  and  to  the  enforcement  of  its  laws, 
it  is  not  possible  justly  to  deny  the  right  of  govern- 
ment to  interfere  with  slavery,  Mormonism,  or  any 
other  institution,  condition,  or  social  status  into  which 
subjects  of  the  United  States  can  enter,  whenever 
Buch  interference  becomes  essential  as  a  means  of 
"public  welfare  or  common  defence  in  time  of  war."  * 

•  In  several  preceding  chapters  other  branches  of  this  subject  have  been 


APPENDIX. 


Many  of  the  leading  doctrines  contained  in  the  foregoing 
work  have  received,  since  the  publication  of  the  fourth  edition, 
the  sanction  of  the  Supreme  Court  of  the  United  States,  of 
whose  authoritative  and  final  decision  in  the  prize  cases,  argued 
in  the  spring  of  1863,  the  following  is  the  substance  :  — 

In  the  Supreme  Court  of  the  United  States.  —  Claimant  of  schoon- 
ers Brilliant,  Crenshaw,  barque  Hiawatha  and  others,  appellants,  vs. 
United  States. 

These  causes  came  up  by  appeal  from  decrees  in  prize,  of  the  Circuit 
Courts  for  the  Southern  District  of  New  York,  and  the  District  of  Massa- 
chusetts, affirming  respectively  the  sentences  of  condemnation  passed  upon 
the  vessels  and  cargoes  by  the  District  Courts  for  said  districts.  The  fol- 
lowing opinion  is  confined  to  the  general  questions  of  law  which  were  raised 
by  all  the  cases.  It  does  not  discuss  the  special  facts  and  circumstances  of 
the  respective  cases. 

March  9th,  1863.     Opinion  of  the  Court  by  Grier,  J. 

There  are  certain  propositions  of  law  which  must  necessarily  affect  the 
ultimate  decision  of  these  cases  and  many  others,  which  it  will  be  proper  to 
discuss  and  decide  before  we  notice  the  special  facts  peculiar  to  each.  They 
are,  — 

First.  Had  the  President  a  right  to  institute  a  blockade  of  ports  in  pos- 
session of  persons  in  armed  rebellion  against  the  government,  on  the  prin- 
ciples of  international  law,  as  known  and  acknowledged  among  civilized 
States  ? 

Second.  Was  the  property  of  persons  domiciled  or  residing  within  those 
States  a  proper  subject  of  capture  on  the  sea  as  "  enemu  s'  property  "  .' 

I.  Neutrals  have  a  right  to  challenge  the  existence  of  a  blockade  de 
facto,  and  also  the  authority  of  the  party  exercising  the  right  to  institute 
it.  They  have  a  right  to  enter  the  ports  of  a  friendly  nation  for  the  pur- 
poses of  trade  and  commerce,  but  are  bound  to  recognize  the  rights  of  a  bel- 
ligerent engaged  in  actual  war,  to  use  this  mode  of  coercion  for  the  purpose 
of  subduing  the  enemy. 

Th  it  a  blockade  de  facto  actually  existed  and  was  formally  declared  and 
notified  by  the  President  on  the  27th  and  30th  of  April,  1861,  is  an  admit- 
ted fact  in  these  cases.  That  the  President,  as  the  executive  chief  of  the 
government,  and  commander-in-chief  of  the  army  and  navy,  was  the  proper 
person  to  make  such  notification,  has  not  been,  and  cannot  be,  disputed. 

The  right  of  prize  and  capture  has  its  origin  in  the  jus  belli,  and  is  gov- 
erned and  adjudged  under  the  law  of  nations.  To  legitimate  the  capture 
of  a  neutral  vessel,  or  property  on  the  high  seas,  a  war  must  exisl  defacto, 
and  the  neutral  must  have  a  knowledge  or  notice  of  the  intent  inn  of  one  of 
the  parties  belligerent  to  use  this  mode  of  coercion  against  a  port,  city,  or 
territory  in  possession  of  the  other. 

Let  us  inquire  whether,  at  the  time  this  blockade  was  instituted,  a  state 

(I'M 


1  \1  \rn  \m\. 

se  inc. ins  of  subduing  the 

w  ...  j  pros(  cuica 

'The]  irtiea  belligerent  in  a  public  war  are  independent 

U  .t  ii  is  not  institute  war,  that  both  parties  Bhould 

■■  ■  reign  Statei .     A  w  ar  may 
of  the  belligerents  claims  sovereign  rights  as  againsl   thi 

■  ivernmenl  may   or  may   nol    culminate  in   an 
cbellion;  l>ut  a  civil  war  always  begins  by  ins  i 
wful   authority   of    the    government     A    <i\il    war    is    never    Bol- 
es such   bj   iis  accidents  —  the  number,  power, 
and  01 .  i  of  the  |><  •  on.     Whi  n  the 

Hid  holds  in  a  hostile  manner  a  ci  rtain  portion 
ry,  I    \     dec!  ired  their  independence,  have  cist  off  their  allegiance, 
•.  ■   1 1  mmenced  hostilities  against  thi  ir  former  sov- 
..  the  world  acknowledges  them  as  belligerents,  and  the  contest  a  war. 
i  laim  to  be  in  arms  to  establish  their  libertj   and  independei  ce,  in 
order  I  i  sovereign  State,  while  the  sovereign  party  treats  them  as 

^■nts  and  rebels  who  ewe  allegiance,  ami  who  should  be  punished  with 
for  their  tii 
The  law*  of  \\ar.  as  established  among  nations,  have  their  foundation  in 
:  all  tend  to  mitigate  the  cruelt  tisery  produced  by  the 

Het    <    thi    parties  to  a  civil  war  usually  i  e  to  each 

other  belligerent  rights.     They  exchange  prisoners,  and  adopt  the  other 
cour  public  or  national  wars. 

"A  civil  war,"  says  Vattel,  "breaks  the  hands  of  society  and  govern- 
ment, or,  at  least,  suspends  their  force  and  effect  ;   it  produi  nation 

adent  parties,  who  consider  ea<  h  other  as  enemies,  and  acknowl- 
two  parties,  therefore,  mu  I  necessarily  be 
.  re  1  as  constituting,  at  least  for  a  time,  two  separate  bodies  —  two  dis- 
tinct -  H        _  superior  to  judge  between  them,  they 
stand  in  precisely  the  same  predicament  as  two  nations  who  engage  in  a 

•  and  have  recourse  to  arms.  This  being  the  case,  it  is  very  evident 
that  the  common  laws  of  war,  those  maxims  of  .  moderation,  and 
honor,  ought  to  be  observed  by  '                es  in  every  civil  war.     Should  the 

onceive  that  be  has  ;i  right  to  hang  up  his  prisoners  as  i 
the  opposite  party  will  make  reprisals,  &c,  &c.  ;  the  war  will  be  cruel,  hor- 
rible, and  every  day  more  destructive  to  the  nation." 

civil  war  is  never  publicly  proclaimed,  in  nomine,  against  insurj 
•  ial  existence   is  a  fact    in   our  domestic  history  which  the  Court  is 
bound  to  notice  and  to  know. 

f  i's  existence,  as  found  in  the  writings  of  the  sag  is  of  the 
common  law,  ma)  he  thus  summarily  stated:   "When  the  regular  i 

itioe  is   interrupted  by  revolt,  rebellion,  or  insurrection,  so   that  the 

■•    kept  open,  civil  tear  exists,  and  hostilities  may 

ting  as  if  those  opposing  the  government  were 

foreign  _   the  land.'"     By  the  constitution,  Congress   alone 

has  ti..  maJ  or  foreign  war.     It  cannot  declare  war 

.  or  any  number  of  States,  bj   virtue  of  any  clause  in  the 

The  constitution  confers  on  ■  the  whole  i 

■■:.     Be  is  bound  to  taki  I  the  laws  he  faithfully  executed. 

amander-in-chief  of  the  Army  and  Navy  of  the  United  states, 

f  the  militia  of  the  several   States  when  called  into  the   actual   service 

of  the  Unit  II'    'iis  no  power  to  initiate  or  declare  a  war,  cither 

•  a  foreign  nation  or  a  doni  .      Hut   by  the  arts  ,..<'  Congress 


APPENDIX.  143 

of  February  28th,  1795,  and  3d  of  March,  1S07,  he  is  author. zed  to  call  out 
the  militia,  and  use  the  military  and  naval  forces  of  the  United  States  in 
case  of  invasion  by  foreign  nations,  and  to  suppress  insurrection  again  it 
the  government  of  a  State  or  of  the  United  States. 

If  a  war  be  made  by  invasion  of  a  foreign  nation,  the  President  is  not 
only  authorized  but  bound  to  resist  force  by  force.  He  does  not  initiate 
the  war,  but  is  bound  to  accept  the  challenge  without  waiting  for  any  spe- 
cial legislative  authority.  And  whether  the  hostile  party  be  a  foreign 
invader,  or  States  organized  in  rebellion,  it  is  none  the  less  a  war,  although 
the  declaration  of  it  be  "unilateral."  Lord  Stowell  (1  Dodson,  247) 
observes,  "  It  is  not  the  less  a  war  on  that  account,  for  war  may  exist  with- 
out a  declaration  on  either  side.  It  is  so  laid  down  by  the  best  writers  on 
the  law  of  nations.  A  declaration  of  war  by  one  country  only,  is  not  a  mere 
challenge,  to  be  accepted  or  refused  at  pleasure  by  the  other." 

This  greatest  of  civil  wars  was  not  gradually  developed  by  popular  com- 
motion, tumultuous  assemblies,  or  local  unorganized  insurrections.  How- 
ever long  may  have  been  its  previous  conception,  it  nevertheless  sprung 
forth  suddenly  from  the  parent  brain,  a  Minerva  in  the  full  panoply  of  war. 
The  President  was  bound  to  meet  it  in  the  shape  it  presented  itself,  without 
waiting  for  Congress  to  baptize  it  with  a  name  ;  and  no  name  given  to  it 
by  him  or  them  could  change  the  fact. 

It  is  not  the  less  a  civil  war,  with  belligerent  parties  in  hostile  array, 
because  it  ma)-  be  called  an  "  insurrection  "  by  one  side,  and  the  insurgents 
be  considered  as  rebels  or  traitors.  It  is  not  necessary  that  the  independ- 
ence of  the  revolted  province  or  State  be  acknowledged,  in  order  to  con- 
stitute it  a  party  belligerent  in  a  war,  according  to  the  law  of  nations. 
Foreign  nations  acknowledge  it  as  war  by  a  declaration  of  neutrality.  The 
condition  of  neutrality  cannot  exist  unless  there  be  two  belligerent  parties. 
In  the  case  of  Santissima  Trinidad,  7  Wheaton,  337,  this  Court  says, 
"  The  government  of  the  United  States  has  recognized  the  existence  of  a 
civil  war  between  Spain  and  her  colonies,  and  has  avowed  her  determina- 
tion to  remain  neutral  between  the  parties.  Each  party  is,  therefore, 
deemed  by  us  a  belligerent  nation,  having,  so  far  as  concerns  us,  the  sov- 
ereign rights  of  war."     See  also  3  Binn.,  252. 

As  soon  as  the  news  of  the  attack  on  Fort  Sumter,  and  the  organization 
of  a  government  by  the  seceding  States,  assuming  to  act  as  belligerents, 
could  become  known  in  Europe,  to  wit,  on  the  13th  of  May,  1861,  the 
Queen  of  England  issued  her  proclamation  of  neutrality,  "  recognizing  hos- 
tilities as  existing  between  the  government  of  the  United  States  of  Ameri- 
ca and  certain  Slates  styling  themselves  the  Confederate  States  of  America." 
This  was  immediately  followed  by  similar  declarations,  or  silent  acquiescence, 
by  other  nations. 

After  such  an  official  recognition  by  the  sovereign,  a  citizen  of  a  foreign 
State  is  estopped  to  deny  the  existence  of  a  war,  with  all  its  consequences 
as  regards  neutrals.  They  cannot  ask  a  Court  to  affect  a  technical  igno- 
rance of  the  existence  of  a  war  which  all  the  world  acknowledges  to  be  the 
greatest  civil  war  known  in  the  history  of  the  human  race,  and  thus  cripple 
the  arm  of  the  government  and  paralyze  its  powers  by  subtle  definitions  and 
ingenious  sophisms. 

The  law  of  nations  is  also  called  the  law  of  nature  ;  it  is  founded  on  the 
common  consent  as  well  as  the  common  sense  of  the  world.  It  contains  no 
such  anomalous  doctrine  as  that  which  this  Court  are  now,  fur  the  first  time, 
desired  to  pronounce,  to  wit :  — 

That  insurgents  who  have  risen  in  rebellion  against  their  sovereign,  ex- 
pelled her  Courts,  established  a  revolutionary  government,  organized  armies, 
and  commenced  hostilities,  are  not  enemies  localise   the)  are  traitors;   and 


i  I  I  IPPJ  \  US 

levied  on  the  government  by  traitors,  in  order  to  dismember  and 

■  ii." 
Iling  his  duties  as  commander-in-chief,  in 
•  with  such  armed  hostile  resistance, 
portions,  as  w  ill  compel  him  to  e 

quesl ion  to  he  decided  by  him  ; 

•    mi  must  In-  governed  by  the  decisions  and  acts  of  the  political 

vernmenl  to  which  this  power  was  intrusted.     "He 

of  force  iln'  « irisis  demands."    The  proclama- 

rficial  and  conclusive  i  o  the  ( iourt  that 

which  demanded  and  authorized  a  recourse  to  Buch  a 

.  v.  peculiar  to  th  I  he  correspond- 

Secretarj  of  State  admits  the  fad  and 

.hi. 

technical  existence  of  a  war  thai    ii   should 

.  we  find  it   in  almost  every  acl   passed  at   the 

I  i    islatui'e  of  1861,  which  was  wholl)   em- 

fovernment  to  prosecute  the  war  with 

ncy.     Ami  finally,  in   1861,  we  find  I  \ajore 

ssing  an  act, approving, legalizing, and  making  valid  all  the  acts, 

■  I  'resident,  &c,  "  as  if  they    had  been 

•the  previous  express  authority  and  direction  of  the 

•  -    if  the  United  State-." 

a   that  such  an  act  wa-  necessary  under  the  circum- 
lin,  it'  thf  President  had  in  onj  issumed  p 

which.  dd  have  the  authority  or  sanction  of  Congress, 

■  ie  well-known  principle  of  law,  "  Omnis  ratihabitio  retrotrahttur  et 
-  ratification  has  operated  t"  perfectly  cun 

In  the  case  of  Brown  vs.  United  States,  8  ("ranch.  131,  132,   133,  Mr. 
Si  iry  treats   of  this   subject,   ami   cites  numerous  authoriti 
•ac  may  refer,  to  prove  this  position^,  and  concludes,  "  1  am  perl 
subject  can  commenci  •  or  capture  propert] 

y,  when   the  sovereign    has  prohibited    it.     lint   suppose  he  did.     I 
if  the  sovereign  may  not  ratif)  lings  j  and  then.  ii_\  a 

Lit]  to  them." 
Although  Mr.  J  :     iry  dissented  from  the  majority  of  the  Court  on 

.  the  doctrine  stated  by  him  on  thi  correct  and  fully 

d  by  auth 

m  de  to  1  tion,  that  it  is  ex  postfacto,  and 

stitutional  and  void,  might   possibly  have  some  weight  on 
ictmenl  in  a  criminal  Court.     But  precedents  from  that 
-  authoritative  in  a  tribunal  administering  pub- 
id  international  law. 

in,  therefor-  f  opinion  that  the  President  hud 

i  to  institute  a  blockad  sion  of  the  States 

.  which  neutrals  are  bound 
II.   V  low  to  the  consideration  of  the  second  question.     What  is 

■    '■■//'  mil  '  /"  "/"  rty  "  .' 

of  all  pert  ithin  the  territory  of  I 

now  i:  capl  ared  on  the  high  seas,  to  he  treated  as  "  enemies'  prop- 

vrtv."  e  owner  lie  in  arms  against  the  government  or  not? 

other  by  direct  force, 
cripple  his  resources  by  the  seizure   or  destruction  i  f  his  prop- 

,     ■  result   of   a  state  of   war. 

alth,  the  products  of  agriculture  and  commerce,  are  said  to 


APPENDIX.  145 

be  the  sinews  of  war,  and  as  necessary  in  its  conduct  as  numbers  and  phys 
ical  force.     Hence  it  is,  that  the  laws  of  war  recognize  the  right  of  a  belli- 
gerent to  cut  these  sinews  of  the  power  of  the  enemy,  by  capturing  his  prop- 
erty on  the  high  seas. 

The  appellants  contend  that  the  term  enemies  is  properly  applicable  to 
those  only  who  are  subjects  or  citizens  of  a  foreign  State  at  war  with  our 
own.  They  quote  from  the  pages  of  the  Common  Law,  which  say,  "  that 
persons  win  wage  war  against  the  king  may  be  of  two  kinds,  subjects  or 
citizens.  The  former  are  not  proper  enemies,  but  rebels  and  traitors;  the 
latter  are  those  that  come  properly  under  the  name  of  enemies." 

They  insist,  moreover,  that  the  President  himself,  in  his  proclaimtion,  ad- 
mits that  great  numbers  of  the  persons  residing  within  the  territories  in  pos- 
session of  the  insurgent  government,  are  loyal  in  their  feelings,  and  forced 
by  compulsion  and  the  violence  of  the  rebellious  and  revolutionary  party, 
and  its  "  de  facto  government,"  to  submit  to  their  laws  and  assist  in  their 
scheme  of  revolution;  that  the  acts  of  the  usurping  government  cannot 
legally  sever  the  bond  of  their  allegiance  ;  they  have,  therefore,  a  correla- 
tive right  to  claim  the  protection  of  the  government  for  their  persons  and 
property,  and  to  be  treated  as  loyal  citizens,  till  legally  convicted  of  having 
renounced  their  allegiance,  and  made  war  against  the  government  by  trea- 
sonably resisting  its  laws. 

They  contend  also  that  insurrection  is  the  act  of  individuals,  and  not  of  a 
government  or  sovereignty;  that  the  individuals  engaged  are  subjects  of 
law  ;  that  confiscation  of  their  property  can  be  effected  only  under  munici- 
pal law  ;  that,  by  the  law  of  the  land,  such  confiscation  cannot  take  place 
without  the  conviction  of  the  owner  of  some  offence  ;  and  finally,  thi 
secession  ordinances  are  nullities,  and  ineffectual  to  release  any  citizen  from 
his  allegiance  to  the  national  government ;  consequently,  the  constitution  and 
laws  of  the  United  States  are  still  operative  over  persons  in  all  the  States  for 
punishment  as  well  as  protection. 

This  argument  rests  on  the  assumption  of  two  propositions,  each  of  which 
is  without  foundation  on  the  established  law  of  nations. 

It  assumes  that  where  a  civil  war  exists,  the  party  belligerent  claiming  to 
be  sovereign  cannot,  for  some  unknown  reason,  exercise  the  rights  of  belliger- 
ents, although  the  revolutionary  party  may.  Being  sovereign,  he  can  i 
cise  only  sovereign  rights  over  the  other  party.  The  insurgent  may  be  killed 
on  the  battle-field,  or  by  the  executioner ;  his  property  on  land  may  be  con- 
•  fiscated  under  the  municipal  law;  but  the  commerce  on  the  ocean,  which 
supplies  the  rebels  with  means  to  support  the  war,  cannot  be  made  the  sub- 
ject of  capture  under  the  laws  of  war,  because  it  is  "  unconstitutional  "  ! ! ! 
Now,  it  is  a  proposition  never  doubted,  that  the  belligerent  party  who  claims 
to  be  sovereign,  may  exercise  both  belligerent  and  sovereign  rights.  (See  4 
Cranch,  272.)  Treating  the  other  party  as  a  belligerent,  and  using  only  the 
milder  modes  of  coercion  which  the  law  of  nations  has  introduced  to  miti- 
gate the  rigors  of  war,  cannot  be  a  subject  of  complaint  by  the  party  to 
»'h  im  it  is  accorded  as  a  grace  or  granted  as  a  necessity. 

We  have  shown  that  a  civil  war,  such  as  that  now  waged   between  the 
Northern   and   Southern  States,   is    properly  conducted,    according    I 
humane  regulations  of  public  law,  as  regards  capture  on  the  ocean. 

Under  the  very  peculiar  constitution  of  this  government,  although  the 
citizens  owe  supreme  allegiance  to  the  Federal  government,  they  owe  also 
a  qualified  allegiance  to  the  Stale  in  which  they  aie  domiciled  ;  their  |  er- 
Hons  and  property  are  subject  to  its  laws. 

Hence,  in  organizing  this  rebellion,  they  have  acini  ax  Shilr:<,  claiming  to 
be  sovereign  over  all  persons  and  property  within  their  respective  limit-, 
and  asserting  a  right  to  absolve  their  citizens  from  their  allegiance  to  the 

19 


1 L6  lppj  M'i\. 

I  Several  of  thi  ive  combined  to  form  a  m  n 

i  l>\   the  world   as  o  bov< 
N  wager  of  battle.     I  be 

are  held  in  hostility  to  the  gen- 
ment     ll    is    no    loose,   unorganised    insurrection,  having   no 
It  has  a  boundary,  marked  bj  lir. 
issed  onl)  b)  force.     South  of  this  line  is 
:  is  claimed  and  held  in  possession  bj  an  i 
i  power. 
,  within  this  territory,  whose  property  maj  be  u 

■   i       stile  power,  are  in  this  contesl  liable  to  be 
lough  uol   :  ve  <  ast  off  their  alle- 

war  mi  their  government,  and  are  none  the  less  <  i 

:'  the  term  "  enemies'  property,"  we  will  be 
led  inl  i  Fleta  ami  Lord  Coke  for  their  definition  of  the 

«  h    is   a  technical  phrase   peculiar  to  prize  courts,  ami 

pon  principles  of  publi  om  th<  i    mmon  law. 

rty  be  liabli  i  mies'  property,"  doi 

be  <>« ner.     ••  li 
1  enemies' property*.'     It  is  of  no  consequence 
^tH  an  ally  or  a  citizen."     8  Cranch,  384.     "The  owner 

iy."      ;  Wash.  ('.('.  K.  1  83. 
:  ■       soil  of  thi  j .  as  well  as  other  property 

f  its  weall  a 
yarded  as  legitimate  prize,  withoul  regard  to  the 
wmT,  ami  much  more  so  it'  lie  reside  and  trade  within  its 
Upton,  ch  it.) 


opinion  of  the   highest  judicial  tribunal   of  the  United 
■  \  Mr.  Justice  Grier,  and  was  concurred  in  1>\  Justices 
Wayne.   Swayne,  Miller,  ami    Davis.     An   opinion    was  delivered  by  Mr. 
-"ii.  and  concurred  in  by  Chief  Justici    I  ami  Justices  Clif- 

nd  Catron,  who   differed  from  the  majority  of  the  Court  upon  the 
■■  whether  our  civil  war  began  befon  July  L3,  1861  '.'  "  the  major- 
'  e,  and  the  minority  the  negative, 
tion  many  of  th(  of  international,"  cot 

..  and  belligerent  law  set  forth  in  the  treatise  on  the  "  11'"/-  /'<<» 
;  lativt    I'"*  i  of  '  'ongress." 

Mr.  .  dissenting.     The  property  in  this  case,  vessel  and 

.    bj  a  governmenl   vessel   on  the  20th  of  May,  1861,  in 

Ueg  d  violation  of  the  blockade  of  the  ports  of  the 

I  n     II   iv.  itha   was    a  British   vessel,  and    the 

tisfa   subjects.     The  vessel  had  entered  the   James    River 

e,  on       :  n  •;.   to  City  Point,  upwards  of  one  hundred 

miles  from  the  mouth,  where  Bhe  took  in  her  cargo.     She  finished  loading 

on  the  il  was  dela  departing  on  her  outward  voyage 

till  tla  '  of  a  tug  to  tow    her  down  the  riv<  t.      She   arrived   at 

2  ith,  where,  the  blockade  in  the  mean  time  having 

Bbips,  and  the   hoarding   officer 

indorsed  on  her  "0  iter  any  port  in  Virginia,  or 

south  id' it."     This  occurred   some  thi  above  the  place  where  the 

lag  '  tioned,  and  the  boarding  officer  d  ■   master  to 

dp  to  when  he  came  _-    dp,  which  was  done,  when 

»he  was  taken  in  charge  as  prize. 


APPENDIX.  14:7 

On  the  30th  of  April,  flag-officer  Pendergrast,  U.  S.  ship  Cumberland,  oft' 
Fortress  Monroe,  in  Hampton  Roads,  gave  the  following  notice :  "  All 
vessels  passing  the  capes  of  Virginia,  coming  from  a  distance  and  ignorant 
of  the  proclamation  (the  proclamation  of  the  President  of  the  27th  of 
April  that  a  blockade  would  be  established),  will  be  warned  oft';  and  those 
passing  Fortress  Monroe  will  be  required  to  anchor  under  the  guns  of  the 
fort  and  subject  themselves  to  an  examination." 

The  Hiawatha,  while  engaged  in  putting  on  board  her  cargo  at  City 
Point,  became  the  subject  of  correspondence  between  the  British  Minister 
and  the  Secretary  of  State,  under  date  of  the  8th  and  9th  of  May,  which  drew 
from  the  Secretary  of  the  Navy  a  letter  of  the  9th,  in  which,  after  referring 
to  the  above  notice  of  the  flag  officer  Pendergrast,  and  stating  that  it  had 
been  sent  to  the  Baltimore  and  Norfolk  papers,  and  by  one  or  more  published, 
advised  the  Minister  that  fifteen  days  had  been  fixed  as  a  limit  for  neutrals 
to  leave  the  ports  after  an  actual  blockade  had  commenced,  with  or  without 
cargo.  The  inquiry  of  the  British  Minister  had  referred  not  only  to  the 
time  that  a  vessel  would  be  allowed  to  depart,  but  whether  it  might  be 
ladened  within  the  time.  This  vessel,  according  to  the  advice  of  the  Secre- 
tary, would  be  entitled  to  the  whole  of  the  loth  of  May  to  leave  City  Point, 
her  port  of  lading.  As  we  have  seen,  her  cargo  was  on  board  within  the 
time,  but  the  vessel  was  delayed  in  her  departure  for  want  of  a  tug  to  tow 
her  down  the  river. 

"We  think  it  very  clear,  upon  all  the  evidence,  that  there  was  no  intention 
on  the  part  of  the  master  to  break  the  blockade  ;  that  the  seizure  under  the 
circumstances  was  not  warranted,  and  upon  the  merits,  that  the  ship  and 
cargo  should  have  been  restored. 

Another  ground  of  objection  to  this  seizure  is,  that  the  vessel  was  enti- 
tled to  a  warning  indorsed  on  her  papers  by  an  officer  of  the  blockading 
force,  according  to  the  terms  of  the  proclamation  of  the  President ;  and 
that  she  was  not  liable  to  capture  except  for  the  second  attempt  to  leave 
the  port. 

The  proclamation,  after  certain  recitals,  not  material  in  this  branch  of  the 
case,  provides  as  follows  :  the  President  has  "  deemed  it  advisable  to  set  on 
foot  a  blockade  of  the  ports  within  the  States  aforesaid  (the  Stales  referred 
to  in  the  recitals),  in  pursuance  of  the  laws  of  the  United  States  and  of  the 
law  of  nations,  in  such  case  made  and  provided."  "  If,  therefore,  with  a 
view  to  violate  such  blockade,  a  vessel  shall  approach,  or  shall  attempt  to 
leave  either  of  said  ports,  she  will  be  duly  warned  by  the  commander  of 
one  of  the  blockading  vessels,  who  will  indorse  on  her  register  the  fact  and 
date  of  such  warning,  and  if  the  same  vessel  shall  again  attempt  to  enter 
or  leave  the  blockaded  port,  she  will  lie  captured  and  sent  to  the  nearest 
convenient  port  for  such  proceedings  against  her  and  her  cargo,  as  prize, 
as  may  be  deemed  advisable." 

The  proclamation  of  the  President  of  the  27th  of  April  extended  that  of 
the  19th  to  the  Slates  of  Virginia  and  North  Carolina. 

It  will  he  observed  that  this  warning  applies  to  vessels  attempting  to 
enter  or  leave  the  port,  and  is  therefore  applicable  to  the  Hiawatha. 

"We  must  confess  that  we  have  not  heard  any  satisfactory  answer  to  the 
objection  founded  upon  the  terms  of  this  proclamation. 

It  lias  been  said  that  the  proclamation,  among  other  grounds,  as  stated 
on  its  face,  is  founded  on  the  "  law  of  nations,"  and  hence  draws  after  it  the 
law  of  blockade  as  found  in  that  code,  and  that  a  warning  is  dispensed  with 
in  all  cases  where  the  vessel  is  chargeable  with  previous  notice  or  knowledge 
that  the  port  is  blockaded.  But  the  obvious  answer  to  the  suggestion  is, 
that  there  is  no  necessary  connection   between  the  authority  upon  which  the 


1  ;  8  u»i  i  sdix. 

it  -  pen- 
iinded  upon  the  law  of  na 

of  thai  code, 

ll\  principles  of  inter- 

\\  of  this  character 

tei  ms  in  res] 
i  (4th  Jul) ), 

ling  the  ports  <>f  the  insur- 
.  but)  "bj  proceedings  in  tin  nature 

; 

eems  1  n  entertained   by  the 

.  under  w  hose  orders  it   v  ution. 

rt  to  the   President,  4th    '  ing  to 

imerce   at   those  ports  where  the  govern- 
ment w  i  rroitted  to  collect  the  revenue,  that  "  in  the  performance 
municipal  duty  the  property  and  interests  of  fori 

i  in  our  home  questions,  and  with  a  view 
»  to  them  every  comity  I  instances  would  justify,  the 

■  as  practicable,  madi 
urred  under  this  e  •  or  non-interco 

mmanders,  be  observes,  were  dir  permit 

depart  within   fifteen  d  ij  a  as  in  ca 
.1  their  vessels  were  uot  to  be  seized    unless 

D  once  warned  off,  to  enter  an  interdicted  port  in 
*uch  warning." 

i  new  one  in  tin's  Court.     The  British  government 
:itied  the  I  f  the  blockade  of  certain  ports  iii  the  West 

.  but  '•nor  ■  3  as  existing,  unless  in  res 

ticular  ports  which  may  be  actually  invested,  and,  then,  not   to  C 

they  shall  have  been  previously  warned  not 
I 

rose   upon   this   blockade   in   Mar.    In.   Co.  w    Woods 

'ice  Marshall,  in  delivering  the  opinion  of  the  court,  observed, 

the  order  are  not  satisfied  by  any  previous  notice  which  the 

may  have  than  by  her  being  warned  off.     This  is 

a  technical  term  which  is  well  understood.     It    is    qo!    satisfied    by   notice 

i  in  any  other  manner.     The    effect  of  this   order    is,   that   a 

I  in  the  situati  >n  of  one  having  notice  of  the  blockade  until 
It  gives  her  a  right  to  inquire  of  the  blockading  squad- 
ron, if  warning  from  one  capa  ing  it, 
quently,    dispenses   with   her   making   that   inquiry   elsewhere. 
:           .   neutral   vessel    might   lawfully  sail   for  a 
blockaded  port, knowing  it  to  be  blockaded,  and  being  found  sailing  towards 
constitute  an  atl                     ik  the  b                 .:il  she 
.  off." 
W(                                                 .  that,  according   to   the   very  terms   of  the 
proclamation,  neutral  ships  were  entitled  to  a  warning  by  one  of  the  block- 
Iron,  and  coul  1  be  lawfully  seized  only  on  the  second  attempt  to 
enter  or  leave  the  port. 

[t  is  remarkable,  and  the  Secretary,  in  refer- 

the  block  I  as  ■<  blockade  under  the  law  of 

restraint'  t  the  interdicted  ports  under  the 

municipal  laws  of  the  governmi 

ther  objection  taken  to  the  seizure  of  this  vessel    and   cargo  is,  that 


APPENDIX.  149 

there  was  no  existing  war  between  the  United  States  and  the  States  in  in- 
surrection, within  the  meaning  of  the  law  of  nations,  which  drew  after  it 
the  consequences  of  a  public  or  civil  war.  A  contest  by  force  between 
independent  sovereign  States  is  called  a  public  war  ;  and,  when  duly  com- 
menced, by  proclamation  or  otherwise,  it  entitles  both  of  the  belligerent 
parties  to  all  the  rights  of  war  against  each  other  and  as  respects  neutral 
nations.  Chancellor  Kent  observes,  "  Though  a  solemn  declaration,  or  pre- 
vious notice  to  the  enemy,  be  now  laid  aside,  it  is  essential  that  some  for- 
mal public  act,  proceeding  directly  from  the  competent  source,  should 
announce  to  the  people  at  home  their  new  relations  and  duties  growing  out 
of  a  state  of  war,  and  which  should  equally  apprise  neutral  nations  of  the 
fact,  to  enable  them  to  conform  their  conduct  to  the  rights  belonging  to  the 
new  state  of  things."  "  Such  an  official  act  operates  from  its  date  to 
legalize  all  hbstile  acts,  in  like  manner  as  a  treaty  of  peace  operates  from 
its  date  to  annul  them."  He  further  observes,  "  As  a  war  cannot  lawfully 
be  commenced  on  the  part  of  the  United  States  without  an  act  of  Congress, 
such  act  is,  of  course,  a  formal  notice  to  all  the  world,  and  equivalent  to 
the  most  solemn  declaration." 

The  legal  consequences  resulting  from  a  state  of  war  between  two  coun- 
tries at  this  day  are  well  understood,  and  will  be  found  described  in  every 
approved  work  on  the  subject  of  international  law.  The  people  of  the  two 
countries  become  immediately  the  enemies  of  each  other  —  all  intercourse, 
commercial  or  otherwise,  between  them  unlawful  —  all  contracts  existing  at 
the  commencement  of  the  war  suspended,  and  all  made  during  its  existence 
utterly  void.  The  insurance  of  enemies'  property,  the  drawing  of  bills  of 
exchange  or  purchase  on  the  enemies'  country,  the  remission  of  bills  or 
money  to  it,  are  illegal  and  void.  Existing  partnerships  between  citizens  or 
subjects,  of  the  two  countries  are  dissolved,  and,  in  fine,  interdiction  of 
trade  and  intercourse,  direct  or  indirect,  is  absolute  and  complete  by  the 
mere  force  and  effect  of  war  itself.  All  the  property  of  the  people  of  the 
two  countries  on  land  or  sea  are  subject  to  capture  and  confiscation  by  the 
adverse  party  as  enemies'  property,  with  certain  qualifications  as  it  respects 
property  on  land  (Brown  vs.  United  Shits*,  8  Cranch,  110),  all  treaties 
between  the  belligerent  parties  are  annulled.  The  ports  of  the  respective 
countries  may  be  blockaded,  and  letters  of  marque  and  reprisal  geanted  as 
rights  of  war,  and  the  law  of  prizes,  as  defined  by  the  law  of  nations,  comes 
into  full  and  complete  operation,  resulting  from  maritime  captures,  jure 
belli.  War  also  effects  a  change  in  the  mutual  relations  of  all  states  or 
countries,  not  directly,  as  in  the  case  of  the  belligerents,  but  immediately 
and  indirectly,  though  they  take  no  part  in  the  contest,  but  remain 
neutral. 

This  great  and  pervading  change  in  the  existing  condition  of  a  country, 
and  in  the  relations  of  all  her  citizens  or  subjects,  external  and  internal, 
from  a  state  of  peace,  is  the  immediate  effect  and  result  of  a  state  of  war: 
and  hence  the  same  code,  which  has  annexed  to  the  existence  of  a  war  all 
these  disturbing  consequences,  lias  declared  that  the  right  of  making  war 
belongs  exclusively  to  the  supreme  or  sovereign  power  of  the  state. 

This  power,  in  all  civilized  nations,  is  regulated  by  the  fundamental  laws 
or  municipal  constitution  of  the  country. 

By  our  Constitution  this  power  is  lodged  in  Congress.  Congress  shall 
have  power  "to  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water." 

We  have  thus  far  been  considering  the  status  of  the  citizens  or  Bubjects 
of  a  country  at  the  breaking  out  of  a  public  war,  when  recognized  or 
di  clared  by  the  competent  power. 


1  "'I1  \1TI  M'l\. 

portion  of  the  people  <>f  a 

iiirni,  there  is  no  doubt,  if  in  it -^  prog- 

■  be  overl  hi  own 

i.'c  or  dei  lare  the  existence  of  a 

|u  ticea  and  righl  - 

ling  parties  as  in  the  case  of  a  public  war.     Mr. 

!    i  i\  il   war.    ••  Bui   the   general    us 

a  h  .1  wai  us  entitling  both  thi  pai  ties  to  all 

i  1  even  as  reap  cts  neutral  na- 

ore,  thai  if  a  ch  ii  war  existed  betwe  in 

i  of  the  people  in  organized   insurrection   to  overthrow   this 

the  time  this  vessel  ai  d,  and  if  she  was 

le,   Bhe  would   be   1  w  ful  pi  ize  of  w  ir. 

n  againsl   the  established   government  can  be 

v Iili  on  the  footing  of  a  civil  war,  within  the  meauing  of  the  law  of 

I     istitution  of  the  United  States,  and  which  will 

must   be  i  L  or  declared  by  the  war-making 

• 
_   i  i    .    ii      •  :  ■ '     relal  ions  of  its  i  om  thai  of 

:'  war,  or  bring  into 
itral  third  ;   war.     The   w ar  power  of 

ment   must   be  exercised   before  this  changed  condition   of  the 
neutr  d   thir  !    parties   can    be   admitted. 
I  erence  in  thif  n  sp<  cl  between  a  civil  or  a  public  war. 

more  particular  upon  this  branch  of  the  case  than  would 
equired  on  account  of  any  doubt  or  difficulties  attending  the 
■.  i;.  view  of  the  approved  works  upon  the  law  of  nations  or  from  the 
adjudication  of  the  co  fusion   existed    on   the 

Lefinition  of  a  war  that  drew  after  it  all  the  rights  of 
f  war.     I  sjreat  portion  of  the  argument  pn  on  the 

I  that  these  rights  could  be  called  into  operation,  enemies'  property 
captured,  b  .  and  all  the  rights  of  war  enforced  in  prize 

ies  of  war  unknown  to  the  law  of  nations  and  to  the.  Con- 
Btituti 
An  idea  seemed  to  be  entertained  that  all  that  was  necessary  to  constitute 
a     rized  hostility  in  the  district  of  country  in  a  state  of  rebel- 
that  conflicts  on  land  ea,  the  taking  of  towns  and  c 
ts,  in  fine,  the  magnitude  and  dimensions  of  the  resistance  against 
t,  constituted  war.  with  all  the  belligerenl  rights  belonging 
With  a  view  to  enforce  this  i  lea,  we 

!  detail  of  the  several  m<  isures  adopted  bj  th( 
1  tenable  them  to  resist  the  authority  of  the  general 

.   of  many  hold  and   daring  resistance  and   of  con- 

flict.     It  was  said  that  war  was  to  be  the  armies 

force  of  the  (       endi 
that  in  the  lunsel,    "  When- 

lation  of  opposing  h<  h   -  assumed  the  proportion 

n  peace  is  driven  dinar)  authority 

ion  of  law  are  suspended,  and   war  in  fact  and  by  neci 

don  until  ;  he  law  -  resumed  their 

. 

Now,  in  oi  ibl    this    Lb    war.  and    may  be  a  war  of  the  mosl 

extensive    and    tl  i     dimensioi  Cts,  bul    ii    is    a  statement 

:,  i-  no  ]•  levancy  or  weight 
war.  in  a  1  ise,  in  the  s<  i 


APPENDIX.  151 

the  law  of  nations,  and  of  the  Constitution  of  the  United  States  ?  For  it 
must  be  a  war  in  this  sense  to  attach  to  it  all  the  consequences  that  belong 
to  belligerent  rights.  Instead,  therefore,  of  inquiring  after  armies  and 
navies,  and  victories  lost  and  won,  or  organized  rebellion  against  the  gener- 
al government,  the  inquiry  should  be  into  the  law  of  nations  and  into  the 
municipal  fundamental  laws  of  the  government.  For  we  find  there,  that  to 
constitute  a  civil  war  in  the  sense  in  which  we  are  speaking,  before  it  can 
exist,  in  contemplation  of  law,  it  must  be  recognized,  or  declared  by  the 
sovereign  power  of  the  state,  and  which  sovereign  powers  by  our  Constitu- 
tion is  lodged  in  the  Congress  of  the  United  States  ;  —  civil  war,  therefore, 
under  our  system  of  government,  can  exist  only  by  an  act  of  Congress, 
which  requires  the  assent  of  two  of  the  great  departments  of  the  govern- 
ment, the  Executive  and  Legislative. 

We  have  thus  far  been  speaking  of  the  war  power  under  the  Constitution 
of  the  United  States,  and  as  known  and  recognized  by  the  law  of  nations. 
But  we  are  asked,  what  would  become  of  the  peace  and  integrity  of  the 
Union  in  case  of  an  insurrection  at  home  or  invasion  from  abroad  if  this 
power  could  not  be  exercised  by  the  President  in  the  recess  of  Congress, 
and  until  that  body  could  be  assembled  ? 

The  framers  of  the  Constitution  fully  comprehended  this  question,  and 
provided  for  the  contingency.  Indeed,  it  would  have  been  surprising  if 
they  had  not,  as  a  rebellion  had  occurred  in  the  State  of  Massachusetts 
while  the  Convention  was  in  session,  and  which  had  become  so  general  that 
it  was  quelled  only  by  calling  upon  the  military  power  of  the  State.  The 
Constitution  declares  that  Congress  shall  have  power  "  to  provide  for  call- 
ing forth  the  militia  to  execute  the  laws  of  the  Union,  suppress  insurrec- 
tions, and  repel  invasions."  Another  clause,  "  that  the  President  shall  be 
commander-in-chief  of  the  army  and  navy  of  the  United  States,  and  of 
the  militia  of  the  several  States  when  called  into  the  actual  service  of  the 
United  States  ;  "  and,  again,  "  he  shall  take  care  that  the  laws  shall  be 
faithfully  executed."  Congress  passed  laws  on  this  subject  in  1792  and 
1790.     1  United  States  Laws,  pp.  264,  424. 

The  last  Act  provided  that  whenever  the  United  States  shall  be  invaded, 
or  be  in  imminent  danger  of  invasion  from  a  foreign  nation,  it  shall  be 
lawful  for  the  President  to  call  forth  such  number  of  militia  most  conve- 
nient to  the  place  of  danger,  and  in  case  of  insurrection  in  any  State  against 
the  governmenl  thereof,  it  shall  be  lawful  for  the  President,  on  the  applica- 
tion of  the  Legislature  of  such  State,  if  in  session,  or  if  not,  of  the  Execu- 
tive of  the  State,  to  call  forth  such  number  of  militia  of  any  other  State  or 
States  as  he  may  judge  sufficient  to  suppress  such  insurrection. 

The  2d  section  provides,  that  when  the  laws  of  the  United  States  shall 
be  opposed,  or  the  execution  obstructed  in  any  State  by  combinations  too 
powerful  to  be  suppressed  by  the  course  of  judicial  proceedings,  it  shall  be 
lawful  for  the  President  to  call  forth  the  militia  of  such  State,  or  of  any 
other  State  or  States  as  may  be  necessary  to  suppress  such  combinations 
and  by  the  Act  3  March,  1807  (2  U.  S.  Laws,  443),  it  is  provided  tha 
incase  of  insurrection  or  obstruction  of  the  laws,  either  in  the  United 
States  or  of  any  Stale  or  Territory,  where  it  is  lawful  for  the  President  to 
call  forth  the  militia  for  the  purpose  of  suppressing  such  insurrection,  and 
causing  the  laws  to  lie  executed,  it  shall  be  lawful  to  employ  for  the  same 
purpose  such  part  of  the  land  and  naval  forces  of  the  United  Slates  as 
shall  be  judged  necessary. 

It  will  he  seen,  therefore,  that  ample  provision  has  been  made  under  the 
Constitution  and  laws  against  any  sudden  and  unexpected  disturbance  of 
the  public  peace  from  insurrection  at  home  or  invasion   from  abroad.     The 


1    »_  UVi.M'IX. 

is  put  under  the  control  of 
H  roe 

■  f  war,  or  anj  i 
St  iii-  of  l'i  nnsylvania  in 
intr) ,  a  few 
If  of  the  'I  in 

force   would    be 
or  small,  that  n 

Bmall,   the 
■ 
tnd   not  u  nd,  as 

sembling  of  Congre 

:     '  war    pour.  . 

it     Then, 
i  on  under  the  municipal  law  of  1795,  it   would   be  under  the 
,  and  ,  m  ali  all  the 

gued  that  the  authority  conferred  I  by  the 

dni  with  th(  the  <>li\  ioua  answer  is, 

1       stitution,  and   which  is 
• 

ler  and  tranquillity  of  the  country  in  a  time  of  pi  ace 

ij  public  disorder  or  disturbance  by  foreign 

is   any  force  in  this  argument, 

st   te  of  war  with  all  the  rights  of  war,  and  all  the  penal 

nding  it  every  time  this  power  is  exercised  by  calling  out 

a  mil;  i  cute  the  laws  or  to  suppn  ss  insurrecl  i  »n  or  rebellion  ; 

ture  of  the  power  cannot  depend  upon  the  numbers  called  out. 

.-.hit  numbers  will  c  war  and  what  numbers  will  not?     It 

»ued  that  this  power  of  the  President  from     i  -hould 

g  him  with  the  war  lublic  might 

■i-  from  thi  ile   party  bef  »re 

sembling  oi  But  we  have  seen  that  the  whole  milit  u 

under  the  municipal  laws  of  the  country.     He 

the  adversary  upon  land   and   water  with  all   the  forces  of  the 

it.     The  truth  is,  this  idea  of  the  existence-  of  any  necessity  lor 

war  power,  under  the    Act  of  1795,  is  sim- 

i:  for,  besides  having  the  command  of  the  whole 

-can  be  assembled  within  any  thirtj 

the  country  requires  that  the  war  power  shall  be  brought 

07  did  not,  and  could  not  under  the  Constitution, 
President  the  power  of  declaring  war  against  a  St 

war  existed,  and  upon  that    ground   authorize 
ipture  and  of  the  ]       erty  of  every  ci  iz<  □  of  thi 

3    of  war,    « 

be  civil  .  as  we  hai  ;  citizen  of  the  hostile 

public  enemy,  and  treat   bim  .  whatevei 

been  h  .  eat  power  over  the  business  and  prop- 

tiv(  dep  irtment  bj  I   i 
tion.     It  i  egated  or  su 

done  can  determine  ir  exists  or  should  be 

declared;  and  until  they  have  acted,  no  citizen  of  the  State  can  : 

-      ...  committed  some  offence  against  a 


APPENDIX.  153 

law  of  Congress  passed  before  the  act  was  committed,  which  made  it  a 
crime,  and  defined  the  punishment.  The  penalty  of  confiscation  for  the  acts 
of  others  with  which  he  had  no  concern  cannot  lawfully  be  inflicted. 

In  the  breaking  out  of  a  rebellion  against  the  established  government, 
the  usage  in  all  civilized  countries,  in  its  first  stages,  is  to  suppress  it  by 
confining  the  public  forces  and  the  operations  of  the  government  againsl 
those  in  rebellion,  and  at  the  same  time  extending  encouragement  and  sup- 
port to  the  loyal  people  with  a  view  to  their  cooperation  in  putting  down 
the  insurgents.  This  course  is  not  only  the  dictate  of  wisdom,  but  of  jus- 
tice. This  was  the  practice  of  England  in  Monmouth's  rebellion  in  the 
reign  of  James  the  Second,  and  in  the  rebellions  of  1715  and  1745,  by  the 
Pretender  and  his  son,  and  also  in  the  beginning  of  the  rebellion  of  the 
Thirteen  Colonies  of  1776.  It  is  a  personal  war  against  the  individuals 
engaged  in  resisting  the  authority  of  the  government.  This  was  the  char- 
acter of  the  war  of  our  Revolution  till  the  passage  of  the  Act  of  the  Par- 
liament of  Great  Britain  of  the  16th  of  George  Third,  1776.  By  that  act 
all  trade  and  commerce  with  the  Thirteen  Colonies  was  interdicted,  and  all 
ships  and  cargoes  belonging  to  the  inhabitants  subjected  to  forfeiture,  as  if 
the  same  were  the  ships  and  effects  of  open  enemies.  From  this  time  the 
war  became  a  territorial  civil  war  between  the  contending  parties,  with  all 
the  rights  of  war  known  to  the  law  of  nations.  Down  to  this  period  the 
Mar  was  personal  against  the  rebels,  and  encouragement  and  support  con- 
stantly extended  to  the  loyal  subjects  who  adhered  to  their  allegiance,  and 
although  the  power  to  make  war  existed  exclusively  in  the  King,  and  of 
course  this  personal  war  carried  on  under  his  authority,  and  a  partial  exer- 
cise of  the  war  power,  no  captures  of  the  ships  or  cargo  of  the  rebels  as 
enemies'  property  on  the  sea,  or  confiscation  in  Prize  Courts  as  rights  of 
war,  took  place  until  after  the  passage  of  the  Act  of  Parliament.  Until 
the  passage  of  the  act  the  American  subjects  were  not  regarded  as  enemies 
in  the  sense  of  the  law  of  nations.  The  distinction  between  the  loyal  and 
rebel  subjects  was  constantly  observed.  That  act  provided  for  the  capture 
and  confiscation  as  prize  of  their  property  as  if  the  same  were  the  property 
"  of  open  enemies."     For  the  first  time  the  distinction  was  obliterated. 

So  the  war  carried  on  by  the  President  against  the  insurrectionary  dis- 
tricts in  the  Southern  States,  as  in  the  case  of  the  King  of  Great  Britain  in 
the  American  Revolution,  was  a  personal  war  against  those  in  rebellion, 
and  with  encouragement  and  support  of  loyal  citizens  with  a  view  to  their 
cooperation  and  aid  in  suppressing  the  insurgents,  with  this  difference,  as 
the  war-making  power  belonged  to  the  King,  he  might  have  recognized  or 
declared  the  war  at  the  beginning  to  be  a  civil  war,  which  would  draw  after 
it  all  the  rights  of  a  belligerent,  but  in  the  case  of  the  President  no  such 
power  existed ;  the  war  therefore  from  necessity  was  a  personal  war,  until 
(  longress  assembled  and  acted  upon  this  state  of  things. 

Down  to  this  period  the  only  enemy  recognized  by  the  government  was 
the  persons  engaged  in  the  rebellion  ;  all  others  were  peaceful  citizens, 
entitled  to  all  the  privileges  of  citizens  under  the  Constitution.  Certainly  it; 
cannot  rightfully  be  said  that  the  President,  has  the  power  to  convert  a  loyal 
citizen  into  a  belligerent  enemy,  or  confiscate  his  property  as  enemy's 
property. 

Congress  assembled  on  the  call  for  an  extra  session  the  4th  of  July,  1861, 
and  among  the  first  acts  passed  was  one  in  which  the  President  was  author- 
ized by  proclamation  to  interdict  all  trade  and  intercourse  between  all  the 
inhabitants  of  States  in  insurrection,  and  the  rest  of  the  United  Slates,  sub- 
j<  cting  vessel  and  cargo  to  capture  and  condemnation  as  prize,  and  also  to 
direct    the  capture  of  any  ship  or  vessel  belonging   in  whole   or  in    part   to 

20 


1  ">  I  UTIAl'lX. 

any  inh  il  it  mt  of  inhabitant*  ar< 

■  m. I  .it  mm  or  in  any  pan  of  i h 
I  Stoi  \        F  I  of  13th  of  July,  1881 

i '  j    porl  in  a  ('"Ure- 

mic could  nol  be  collected,  an  1  proA  id- 
ire  and  condemnation  of  anj  vessel  attempting  I 
P    uuent's  Pi  d  on  the  1 6  th  of  August   follow- 

\  irth  ami   Si  mi  h  Carolina,   pari  of  Virginia, 
\       .ma.  Louis  is,  Arkans. is,  Mississippi,  and   Florida, 

tigress,  we  think,  recognized  a  Btate  of  civil  war  bel 
vernment  ana  the  Confederate  d  made  it   territorial.     The 

i  of  1776,  which  converted  the  rebellion  of  the  Colonies 
n   embles,  in  its  leading   features,  the 
which  we  b  Q  ■■   'anient,  iii   recognizmg   or   declaring    the 

.  e  of  a  civil  war  between  itself  ami  a  portion  of  the  people  in  insur- 
i, usually  modifies  its  effects  with  a  view,  as  far  as  practicable,  to  favor 
the  innocent  and  loyal  ci  izens  or  bu  jects  involved  in   the  war.     It  is  only 
E    ■     ament,  arising  from  the  magnitude  of  the 
■  iat  can  excuse  the  c  of  the  personal  into  a  territorial 

.    .ail  thus  confound   all    distinction    between    guilt   and    innoi 
the  modification  in  the  Acl   of  Parliament  declaring  the  ten 
war. 

\  ■.  which,  for  the  encouragement 
of  well  affected  persons,  and  to  afford  Bpeedy  protection  to  those  desirous 
of  returning  to  their  allegianc  .  provided  for  declaring   such  inhabitants  of 
any  colony,  county,   town,  port,  or  place,  at   peace  with  his  majesty,  and 
guch  notice  by  proclamation  there  should  be  no  further  captures.     The 
:  ily  provides  that  the  President  may,  in   his  discretion,  per- 
mit commercial  intercourse  with  any  such  part  of  a  State  or  section,  the  in- 
habitants  of  which  ari  !  to   be   in   a  Btate  of  insurrection  (§  o), 
obviously  intending  to  favor  loyal  citizens,  and  encourage  others  to  return 
ir  loyalty.     And  the  8th  section  provides  that  the  Secretary  of  the 
iry  may  mitigate  or  remit  the  forfeitures  and  penalties  incurred  under 
The  Act  of  31st  July  is  also  one  of  a  kindred  character.     Thai 
appropriates  $2,000,000  to  be  expended  under  the  authority  of  the   Presi- 
a    supplying    and    delivering    arms   and    munitions   of  war  to    loyal 
citizens  residing  in  any  of  I  of  which  the  inhabitants  are  in  rebel- 
r  in  which   it   may  he  threatened.      We  agree,  therefore,  thai  the    \c 
Kith  July.  1861,  recognized  a  state  of  civil   war  between   the  government 
the  people  of  the  States  described  in  that  proclamation. 

the     United   States   vs.    Palmer   (3   Wn.  610);    Divina 

i.  and  -i  [bid,  52,  and  that  class  of  cases  to  be  found    in    the    reports 

ferred   to  as   furnishing  authority  for  the  of  the  war  power 

claimed  for  the  President  in  the  present  case.     These  cases  hold  that  when 

vernment  of  the  United   States    recognizes  a   b1  ite  of  civil   war  to 

exist    between   a   foreign    nation    and    her    colonies,    hut    remaining    itself 

neutral,  tic  ,d  to  consider  as  lawful  all  those  acts  which  the 

i  vernment  ma}  i  insl  the  enemy ;  and  we  admit  the  President, 

who  conducts  the  foreign  relations  of  the  government,  may  fitly  recognize, 

or  refuse  to  do  so,  1  snee  of  civil  war  in  the  foreign  nation  under  the 

circumstan 

But  this  is  a  very  different  question  from  the  one  before  us,  which  is, 
whether  the  Presidenl  [ruize  or  declare  a  civil  war.  under  the  Con- 

stitution, with  all  its  belligerent  rights,  between  his  own  government  and  a 
portion  of  it-  citizens  in  a  Btate  of  insurrection.  Thai  power,  as  we  have 
seen,  belongs  to  Congress.     We   agree,  when  such  a  war  is  recognized  or 


APPENDIX.  155 

declared  to  exist  by  the  war-making  power,  but  not  otherwise,  it  is  the  duty 
of  the  courts  to  follow  the  decision  of  the  political  power  of  the  govern- 
ment. 

The  case  of  Luther  vs.  Borden,  et  al.  (7  How.,  45),  which  arose  out  of 
the  attempt  of  an  assumed  new  government  in  the  State  to  overthrow  the 
old  and  established  government  of  Rhode  Island  by  arms.  The  Legislature 
of  the  old  government  had  established  martial  law,  and  the  Chief  Justice,  in 
delivering  the  opinion  of  the  court,  observed,  among  other  things,  that  "  if 
the  government  of  Rhode  Island  deemed  the  armed  opposition  so  formida- 
ble and  so  ramified  throughout  the  State  as  to  require  the  use  of  its  military 
force,  and  the  declaration  of  martial  law,  we  see  no  ground  upon  which  this 
court  can  question  its  authority.  It  was  a  state  of  war,  and  the  established 
government  resorted  to  the  rights  and  usages  of  war  to  maintain  itself  and 
overcome  the  unlawful  opposition." 

But  it  is  only  necessary  to  say,  that  the  term  "  war  "  must  necessarily 
have  been  used  here  by  the  Chief  Justice  in  its  popular  sense,  and  not  as 
known  to  the  law  of  nations,  as  the  State  of  Rhode  Island  confessedly  pos- 
sessed no  power  under  the  Federal  Constitution  to  declare  war. 

Congress,  on  the  6th  of  August,  1862,  passed  an  Act  confirming  all  acts, 
proclamations,  and  orders  of  the  President,  after  the  4th  of  March,  1861, 
respecting  the  army  and  navy,  and  legalizing  them,  so  far  as  was  competent 
for  that  body,  and  it  has  been  suggested,  but  scarcely  argued,  that  this 
legislation  on  the  subject  had  the  effect  to  bring  into  existence  an  ex  ]i<>xt 
facto  civil  war,  with  all  the  rights  of  capture  and  confiscation,  jure  belli, 
from  the  date  referred  to.  An  ex  post  facto  law  is  defined,  when,  after  an 
action,  indifferent  in  itself,  or  lawful,  is  committed,  the  Legislature  then,  for 
the  first  time,  declares  it  to  have  been  a  crime,  and  inflicts  punishment  upon 
the  person  who  committed  it.  The  principle  is  sought  to  be  applied  in  this 
case.  Property  of  the  citizen  or  foreign  subject  engaged  in  lawful  trade  at 
the  time,  and  illegally  captured,  which  must  be  taken  as  true  if  a  confirma- 
t-  iry  act  be  necessary,  may  be  held  and  confiscated  by  subsequent  legislation. 
In  other  words  trade  and  commerce  authorized  at  the  time  by  acts  of  Con- 
gress and  treaties,  may,  by  ex  post  facto  legislation,  be  changed  into  illicit 
trade  and  commerce  with  all  its.  penalties  and  forfeitures  annexed  and 
enforced.  The  instance  of  the  seizure  of  the  Dutch  ships  in  1803  by  Great 
Britain  before  the  war,  and  confiscation  after  the  declaration  of  war,  winch 
is  well  known,  is  referred  to  as  an  authority.  But  there  the  ships  were 
seized  by  the  war  power,  the  orders  of  the  government,  the  seizure  being  a 
partial  exercise  of  that  power,  and  which  was  soon  after  exercised  in  full. 

The  precedent  is  one  which  has  not  received  the  approbation  of  jurists, 
and  is  not  to  be  followed.  See  W.  B.  Lawrence,  2d  ed.  Wheaton's  Element 
of  Int.  Law,  pt.  4,  ch.  1,  sec.  11,  and  note.  But,  admitting  its  full  weight, 
it  affords  no  authority  in  the  present  case.  Here  the  captures  were  without 
any  constitutional  authority,  and  void;  and,  on  principle,  no  subsequent 
ratification  could  make  them  valid. 

Upon  the  whole,  after  the  most  careful  consideration  of  this  case  which 
the  pressure  of  other  duties  has  admitted,  I  am  compelled  to  the  conclusion 
that  no  civil  war  existed  between  this  government  and  the  States  in  insur- 
rection till  recognized  by  the  Act  of  Congress  13th  of  July,  1861  ;  that  the 
President  does  not  possess  the  power  under  the  Constitution  to  declare  war 
or  recognize  its  existence  within  the  meaning  of  the  law  of  nations,  which 
carries  with  it  belligerent  rights,  and  thus  change  the  country  and  all  its 
citizens  from  a  state  of  peace  to  a  state  of  war;  that  this  power  belongs 
exclusively  to  the  Congress  of  the  United  States,  and,  consequently,  ih.ti 
the  President  had  no  power  to  set  on  foot  a  blockade  under  the  law  of 
nations,  and  that  the  capture  of  the  vessel  and  cargo  in  this  case,  and  in  all 


156  \IT|\!> 

n  which  the 

:.  and 
i  1  and 
■ 

!    Mr.    Justice 
■    i  I         •       Opinion  of  Mr.  Justice  Nelson. 

:'  the  judges  «  bo  dis  i  m  the  opin- 

•  -      I       rt,  it  will  be  seen  that  the  Court  were  unani- 

■  questions  treated  of  in  the     preceding  work.      The 

war  (  \\  illi   all  i  to   ///<• 

of  a  public  territorial  war)  to  li  ive  i 

till  tn  exist.     The  question  on 

the  rebellion  was  or  was  nol  a  civil  terri- 

authontatively  Bettled  bj 

:  — 

1.  Sinci  July  L3th,   1861,  thei  en  the  United  States 
and  the  (                                                      ial  war. 

2.  That   the   United  Sta1  thai  time,  have  full  belligerent 

is  districts. 

3.  I:    ■  whether  the  inhabitants  of  the  rebellious  districts  ari 

as  .lif,  in  the  eye  of  the  law,  belliger- 
.  and  they  and  their  •'  >'■,<,-. 

of  war.  whether  the  war  be  civil  or  inter 

into  a  publ  ,  and  treats  hi 

en  his  previous  conduct." 
1.  Ail  th  illy  and  constitutionally  exi 

•  all  the  inhabitants  of  the 
The  :  extract  from  the  same  opinion  shows  what  some  of  these 

:  — 

"The  legal  consequences  resulting  from  a  state  of  war  between  two 

.    t  this    lay,  are  well  ui  .  and  will  b  ibed  in 

"    ived  work  on  the  Bubjecf   of .  international  law.     The  peo] 

intrie8  immediately  6  nemies  of  each  other;  all  inter- 

ial   nr   otherwise,   between  them    unlawful;   all  contracts 

the  commencement  of  the  war  suspended,  and  all  madeduring  its 

The  insi: 

•  ■  or  purchase  in  the  enemy's  country,  the  remission  of  hills 
or  nic  i  g      and  void.     Existing  partnerships  beta 

be  two  countries  are  diss  1  e  !.  and  in  fine,  interdiction  of 

.  direct  or  indirect,  is  absolute  and  complete  by  the 

of  war  itself.     All  thi  property  of  the  people  of  the 

,  land  or  sea,  is  subject  to  capture  and  confiscation  />;/  the 

lies'  property,  with  certain qualifications  as  it  n 

ncn,  110,  Brown  vs.  United  States.)     Alltreaties 

annulled.     The  ports  of  the  respective 

led,  and  letters  of  marque  and   reprisal  granted 

;  war,  and  the  law  of  prize,  as  defined  by  the  law  of  nations, 

into  full  and  complete  operation,  resulting  from  maritime  captures 

Ui.     War  of  "li  States 

•  directly,  as   in   case   I  f  belligerents,   but  immediately  and 
indirectly,  though  thi  part  in  thi  .neutral. 

conditio:!    of  a    country,  i 

is  the  immediate  effect  and  result  of  a 


MILITARY  ARRESTS 


IN 


TIME    OF    fA  R 


PREFACE    TO    MILITARY    ARRESTS 


In  November,  1862,  when  the  author  was  first  requested  by  the 
Government  to  act  as  Solicitor  and  special  counsel  of  the  War  Depart- 
ment, civil  suits  and  criminal  prosecutions  were  pending  against  mil- 
itary officers  and  other  persons  who,  acting  under  orders  of  the  War 
Department,  had  arrested  and  detained  in  custody  citizens  of  the 
United  States,  and  aliens.  It  was  a  part  of  the  duty  assigned  to  him 
to  instruct  counsel  employed  in  different  parts  of  the  country  for  the 
defence  of  those  who  had  been  wrongfully  subjected  to  such  proceed- 
ings by  reason  of  their  obedience  to  orders.  \s  time  advanced,  suits 
and  prosecutions  multiplied,  involving  men  in  high  position.  Treason 
reared  its  head  in  many  shapes  and  in  many  places  in  the  Northern 
States.  Attempts  were  constantly  made  to  bring  the  judicial  power 
of  individual  States  into  collision  with  the  military  forces  of  the 
Union. 

In  all  such  cases,  it  was  essential  to  preserve  the  power  and  dignity 
of  the  General  Government  unimpaired,  and  at  the  same  time  to  avoid 
open  rupture  with  the  courts;  hence  it  was  desirable  to  meet  and  foil 
the  secret  enemies  of  their  country  by  the  use  of  judicial  weapons. 
Tbe  stern  demands  of  military  necessity  were  to  be  reconciled  with  tha 
maintenance  of  civil  liberty,  and  with  the  preservation  of  local  self- 
government.  It  became  necessary  to  show  that  when,  in  time  of  war, 
the  life  of  the  body  politic  was  in  danger,  the  surgeon's  knife  was  the 
only  instrument  by  which  that  life  could  be  saved. 

The  judicial  mind  was  then  far  from  comprehending  cither  the 
perilous  condition  of  public  affairs,  the  change  wrought  by  civil  war  in 
the  rights,  powers,  and  duties  of  the  bench,  or  the  clanger  of  destroying 
the  government  itself  hy  collision  between  its  Political  and  Judicial 
Departments.  The  powers  of  war,  the  rights  of  war,  and  the  courts  of 
war,  seemed  equally  strange  and  alarming;  and  it  is  a  gratifying  proof 
of  the  learning  and  wisdom  of  the  bench,  of  the  bar,  and  of  Con- 
gress, that  recognition  and  sanction  of  doctrines  of  con:  titutional  law, 

159 


1  60  I'i'i  i  LOB  TO   mii.itaky    4RRBBTS. 

which  two  o  were  oon  fined  i"  :i  few  individuals,  have  now 

beoome  bo  general  among  our  mosl  eminenl  judges,  lawyers,  and  Legis- 

The  following  pages  on  Military  Arrests  were  written  in  the  winter 
and  spring  ;.  in  order  to  express,  in  a  Form  convenient  for 

transmission  to  counsel  anting  under  his  instructions,  the  views  of  i  li<- 
author  on  the  general  legal  principles  on  which  military  arrests  arc 
justifiable  and  defensible.  Thej  contain  in  more  extended  form  the 
same  doctrines  of  constitutional  law  expressed  in  the  \Y.\i;  Powers, 
33  j  and  were  originally  published  and  distributed  l>\  order  of 

the  £  of  War. 

W.   W. 

\\  ai:  1>!  PABTM1  NT. 

Washing  i>>n.  June  SO,  i B6 1. 


MILITARY  ARRESTS. 


The  people  of  America,  educated  to  make  their 
own  laws,  and  to  respect  and  abide  by  them,  having 
made  great  sacrifices  in  olden  times  to  acquire  and 
maintain  civil  liberty  under  the  law,  and  holding  the 
rights  of  every  citizen,  however  humble,  as  sacred  as 
the  rights  of  a  sovereign,  accustomed  to  an  almost  un- 
interrupted tranquillity,  and  to  the  full  enjoyment  of  the 
rights  guaranteed  by  our  Constitution  and  laws  to  citi- 
zens in  time  of  peace,  have  been  suddenly  thrown  into 
a  new  and  startling  position.  The  same  Constitution 
which  has  guarded  their  rights  in  peace  is  unexpect- 
edly wheeled  round  for  their  protection  against  their 
former  associates,  who  have  now  become  public  enemies. 
A  safeguard  to  its  friends,  it  is  an  engine  of  destruction 
to  its  foes.  Can  it  be  wondered  at  that  the  sudden 
transition  from  their  accustomed  personal  liberty  to  the 
stern  restrictions  imperatively  required  by  the  neces- 
sities of  public  safety,  in  time  of  civil  war,  should  have 
found  many  intelligent  and  patriotic  men,  unprepared 
for  this  great  change,  alarmed  by  its  consequences,  and 
fearful  that  civil  liberty  itself  might  go  down  by  mili- 
tary usurpation  ? 

ARRESTS  IN  LOYAL  STATES  REGARDED  WITH  ALARM. 

The  arrest  by  military  authority  of  enemies  who  are 
still  left  in  the  loyal  States,  and  who  are  actually  com- 
mitting, or  who  entertain  the  will  and  intention  to  corn- 
21 


I  62  Mil  ll  UN     IRRES  I  I   IN     I  [ME    OF    W  \U. 

mit.  hostile  acts  tending  to  obstruct,  impede,  or  de- 
stroy the  military  operations  of  the  army  or  navy,  and 
the  detention  of  such  persons  for  the  purpose  of  pre- 
venting hostilities,  have  been  looked  upon  with  alarm. 

RIGHT  OF    FREEDOM    PROM     tRRBST    CLAIMED    nv    PUBLIC    ENEMIES. 

And  ii  has  happened  thai  loyal  and  peaceful  citizens 
have  in  some  instances  made  the  mistake  of  settin  ;  up 
unjustifiable  claims  in  behalf  of  public  enemies,  and  of 
asserting  for  {hem  the  privilege  of  freedom  from  mili- 
tary arresl  or  of  discharge  from  imprisonment.  Citi- 
zens, meaning  to  be  loyal,  have  thus  aided  the  public 
enemy  by  striving  to  prevenl  the  military  power  of  the 
government  from  temporarily  restraining  persons  who 
were  acting  in  open  hostility  to  the  country  in  time  of 
war. 

civil.  WAR    CHANGES  OUR  LIBERTIES 

Iii  time  of  civil  war  every  citizen  musl  needs  be  cur- 
tailed  of  some  of  his  accustomed  privileges. 

The  soldier  and  sailor  give  up  mosl  of  their  personal 
liberty  to  the  will  and  order  of  their  commanding  offi- 
cers, 

The  person  capable  of  bearing  arms  may  be  enrolled 
in  the  forces  of  the  United  Stales,  and  is  liable  to  be 
made  a  soldier. 

Our  property  is  liable  to  be  diminished  by  unusual 
taxes,  or  wholly  appropriated  to  public  use,  or  to  be  de- 
si  roved  on  the  approach  of  an  enemy. 

Trade,  intercourse,  the  uses  to  which  it  is  usually  law- 
ful to  put  properly  of  all  kinds,  are  changed  by  war. 

No  civil,  municipal,  constitutional  or  international 
righl  is  unchanged  by  the  intervention  of  war. 


MILITARY    ARRESTS    IX    TIME    OF    WAR.  163 

Shall  the  person  who  is  disloyal  or  hostile  to  the  gov- 
ernment and  country  complain  that  his  privileges  are 
also  modified  in  order  to  protect  the  country  from  his 
own  misconduct  1 

GENERAL    WAR    POWERS    OF    THE    PRESIDENT. 

Some  remarks  on  the  general  war  powers  of  the 
President  being  essential  to  an  explanation  of  the  sub- 
ject of  military  arrests,  it  has  been  found  most  con- 
venient to  reprint  from  a  former  treatise  the  following 
extracts  on  that  subject: 

"  It  is  not  intended  (in  this  chapter*)  to  explain  the 
general  war  powers  of  the  President.  They  are  prin- 
principally  contained  in.  the  Constitution,  Art.  II,  Sect. 
1,  CI.  1  and  7  ;  Sect.  2,  CI.  1 ;  Sect.  3,  CI.  1 ;  and  in  Sect. 
1,  CI.  1,  and  by  necessary  implication  in  Art.  I,  Sect.  9, 
CI.  2.  By  Art  II,  Sect.  2,  the  President  is  made  com- 
mander-in-chief of  the  army  and  navy  of  the  United 
States,  and  of  the  militia  of  the  several  States  when 
called  into  the  service  of  the  United  States.  This 
clause  gives  ample  powers  of  war  to  the  President, 
when  the  army  and  navy  are  lawfully  in  "  actual 
service."  His  military  authority  is  supreme,  under 
the  Constitution,  while  governing  and  regulating  the 
land  and  naval  forces,  and  treating  captures  on  land  and 
water  in  accordance  with  such  rules  as  Congress  may 
have  passed  in  pursuance  of  Art.  I,  Sect.  8,  CI.  11,  14. 
Congress  may  effectually  control  the  military  power,  by 
refusing  to  vote  supplies,  or  to  raise  troops,  and  by  im- 
peachment of  the  President ;  but  for  the  military  move- 


°Chapter  III  '   War  Powere  of  the  President,  &c,"  pages  82,-3,  seventh 
edition. 


[6  ]  Mil  1 1  \i;\    ai;i;i  BT8    in     i  1  m i     OF    WAS. 

ments.  and  measures  essential  to  Overcome  the  enemy — 

for  the  general  conduct  of  the  war — the  President  is 
responsible  to,  and  controlled,  by  no  other  department 
of  government  His  duty  is  to  upheld  the  Constitution 
and  enforce  the  laws,  and  to  respect  whatever  rights 

loyal  citizens  are  entitled  to  enjoy  in  time   of  civil  war, 

to  the  fullest  extent  that   may  be  consistent  with  the 

performance  of  the  military  duty  imposed  on   him.* 

"What  is  thf  extent  of  the  military  power  of  tile 
dent  overthe  persons  and  property  of  citizens  at 
a  distance  from  the  seat  of  war — whether  he  or  the 
War  Department  may  lawfully  order  the  arrest  of  citi- 
zens in  loyal  States  on  reasonable  proof  that  they  are 
either  enemies  or  aiding  the  enemy;  or  that  they  are 
spies  or  emissaries  of  rebels  sent  to  gain  information 
lor  their  use,  or  to  discourage  enlistments;  whether 
martial  law  may  be  extended  over  such  places  as  the 
commander  deems  it  necessary  to  guard,  even  though 
nt  from  any  battle-field,  in  order  to  enable  him  to 
prosecute  the  war  effectually  ;  whether  the  writ  of 
habeas  corpus  may  be  suspended,  as  to  persons  under 
military  arrest,  by  the  President,  or  only  by  Congress, 
ion  which  point  judges  of  the  United  States  courts  dis- 
agree ;)  whether,  in  time  of  war,  all  citizens  are  liable 
to  military  arrest,  on  reasonable  proof  of  their  aiding  or 
abetting  the  enemy,  or  whether  they  are  entitled  to 
practice  treason  until  indicted  by  some  grand  jury; 
thus,  for  example,  whether  Jefferson  Davis,  or  General 
Lee.  if  found  in  Boston,  could  be  arrested  by  military 
authority  and  sent  to  Fort  Warren  ?  Whether,  in  the 
midst  of  wide-spread   and  terrific  war,  those  persons 

*  The  effect  of  a  state  of  war,  in   changing  or  modifying  civil  rights,  is  ex- 
plained in  the  "  War  Powers  of  the  President,"  &c. 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  165 

• 

who  violate  the  laws  of  war  and  the  laws  of  peace,  trai- 
tors, spies,  emissaries,  brigands,  bushwhackers,  gueril- 
las, persons  in  the  free  States  supplying  arms  and  am- 
munition to  the  enemy,  must  all  be  proceeded  against 
by  civil  tribunals  only,  under  due  forms  and  precedents 
of  law,  by  the  tardy  and  ineffectual  machinery  of  arrests 
by  marshals,  (who  can  rarely  have  means  of  appre- 
hending them,)  and  of  grand  juries,  (who  meet  twice  a 
year,  and  could  seldom  if  ever  seasonably  secure  the 
evidence  on  which  to  indict  them  X)  Whether  govern- 
ment is  not  entitled  by  military  power  to  prevent  the 
traitors  and  spies,  by  arrest  and  imprisonment,  from 
doing  the  intended  mischief,  as  well  as  to  punish  them 
after  it  is  done  1  Whether  war  can  be  carried  on  suc- 
cessfully, without  the  power  to  save  the  army  and  navy 
from  being  betrayed  and  destroyed,  by  depriving  any 
citizen  temporarily  of  the  power  of  acting  as  an  enemy, 
whenever  there  is  reasonable  cause  to  suspect  him  of 
being  one  1  Whether  these  and  similar  proceedings 
are,  or  are  not,  in  violation  of  any  civil  rights  of  citizens 
under  the  Constitution,  are  questions  to  which  the  an- 
swers depend  on  the  construction  given  to  the  war 
powers  of  the  Executive.  Whatever  any  commander- 
in-chief,  in  accordance  with  the  usual  practice  of  carry- 
ing on  war  among  civilized  nations,  may  order  his  army 
and  navy  to  do,  is  within  the  power  of  the  President  to 
order  and  to  execute,  because  the  Constitution,  in  ex- 
press terms,  gives  him  the  supreme  command  of  both. 
If  he  makes  war  upon  a  foreign  nation,  he  should  be 
governed  by  the  law  of  nations;  if  lawfully  engaged  in 
civil  war,  he  may  treat  his  enemies  as  subjects  and  as 
belligerents. 

"  The  Constitution  provides  that  the  government  and 


Mil  l  l  \X\     ARRESTS    l\     I  [Ml     OF    WAR. 

regulation  <>f  the  land  and  naval  forces,  and  the  treat- 
ment of  captures,  should  be  according  to  law;  bul  it 
imposes,  in  express  terms,  no  other  qualification  of  the 
war  power  of  the  President  It  docs  not  prescribeanj 
territorial  Limits,  within  the  United  States,  to  which  his 

military   operations    shall    lie    restricted  ;    nor    to    which 

tlie  picket  guards  or  military  officers  (sometimes  called 

provost  marshals)  shall  he  confined.     It  docs  not  exempt 

person  making  war  upon  the  country,  or  aiding  and 

comforting  the  enemy,  from  being  captured,  or  arrested, 

wherever  he  may  he  found,  whether  within  or  old  of 
the  lines  of  any  division  of  the  army.  It  docs  not  pro- 
vide that  public  enemies,  or  their  abettors,  shall  find 
safe  asylum  in  any  part  of  the  United  States  where 
military  power  can  reach  them.  It  requires  the  Presi- 
dent, as  an  executive  magistrate,  in  time  oi  peace,  to  see 
that  the  laws  existing  in  time  of  peace  are  faithfully 
executed:  and  as  commander-in-chief,  in  time  of  war, 
to  see  that  the  laws  of  war  are  executed.  In  doing 
both  duties  he  is  strictly  obej  ing  the  Constitution." 

MARTIAL    LAW    IS    THE    LAW    OF    WAB. 

It  consists  of  a  code  of  rules  and  principles  regulat- 
ing the  rights,  liabilities,  and  duties,  the  social,  muni- 
cipal, and  international  relations  in  time  of  war  of  all 
persons,  whether  neutral  or  belligerent.  These  rules 
are  liable  to  modification  in  the  United  States  by  stat- 
utes, usually  termed  "military  law,"  or  "  articles  of  war," 
the  •rules  and  regulations  made  in  pursuance 
thereof." 

FOUNDATION    OF    MARTIAL    LAW. 

Municipal    law   is   founded    upon   the  necessities  of 
A  organization.     Martial  law  is  founded  upon  the 


MILITARY    ARRESTS    IX    TIME    OF    WAR.  167 

necessities  of  war.     Whatever  compels  a  resort  to  war, 
compels  the  enforcement  of  the  laws  of  war. 

THE    EXTENT   OF    THE    MEANS    OF  WAR    AS    SHOWN    BY  THE    NECES- 
SITIES   OF    WAR,    AND   ITS    OBJECTS. 

The  objects  and  purposes  for  which  war  is  inaugu- 
rated required  the  use  of  the  instrumentalities  of  war. 

When  the  law  of  force  is  appealed  to,  force  must  be 
sufficiently  untrammelled  to  be  effectual.  Military  power 
must  not  be  restrained  from  reaching  the  public  enemy 
in  all  localities,  under  all  disguises.  In  war  there  should 
be  no  asylum  for  treason.  The  aegis  of  law  should  not 
cover  a  traitor. 

A  public  enemy,  wherever  he  may  be  found,  may,  if 
he  resists,  be  killed,  or  captured,  and  if  captured  he  may 
be  detained  as  a  prisoner. 

The  purposes  for  which  war  is  carried  on  may  and 
must  be  accomplished.  If  it  is  justifiable  to  commence 
and  continue  war,  then  it  is  justifiable  to  extend  the 
operations  of  war  until  they  shall  have  completely  at- 
tained the  end  for  which  it  was  commenced,  by  the  use 
of  all  means  employed  in  accordance  with  the  rules  of 
civilized  warfare. 

And  among  those  means  none  arc  more  familiar  or 
more  essential  than  that  of  capturing,  or  arresting,  ami 
confining .  the  enemy.  Necessity  arbitrates  the  rights 
and  the  methods  of  war.  Whatever  hostile  military 
act  is  essential  to  public  safety  in  civil  war  is  lawful. 

POWERS    AND    RESPONSIBILITIES    OF    MILITARY    COMMANDKUS. 

"  The  law  of  nature  and  of  nations  gives  to  bclligerenf  s 
the  right  to  employ  such  force  as  may  be  necessary  in 
order  to  obtain  the  object  for  which  (Ik-  war  was  under- 


14  v  Mii.i  \\\:\    \\:\:\  STS    U&    I'lMi:   OF    WAR. 

taken. "    Beyond  this  the  use  of  force  is  unlawful.  Tliis 
necessity  forms  the  Limit  of  hostile  operations. 

We  nave  the  same  rights  of  war  against  the  allies 
or  associates  of  an  enemy  as  against  the  principal  bel- 
ligerent 

When  militar)  forces  are  called  into  service  for  the 
purpose  of  securing  the  public  safety,  they  may  law- 
rally  obey  military  orders  made  by  their  superior  offi- 
cers. The  commander-in-chief  is  responsible  for  the 
mode  of  carrying  mi  war:  He  determines  the  persons 
or  people  againsl  whom  his  forces  shall  ho  used.  He 
alone  is  constituted  the  judge  of  the  nature  of  the  exi- 
gency, of  the  appropriate  means  to  meet  it,  and  of  the 
hostile  character  or  purposes  of  individuals  whose  con- 
duct  gives  him  cause  to  believe  them  public  enemies. 

His  right  to  seize,  capture,  detain,  and  imprison  sucli 
persons  is  as  unquestionable  as  his  right  to  carry  on 
war.  The  extent  of  the  danger  he  is  to  provide  againsl 
must  be  determined  by  him  ;  he  is  responsible,  if  he 
neglects  to  use  the  means  of  meeting  or  avoiding  it. 

The  nature  of  the  diiliculty  to  be  met  and  the  object 
to  be  accomplished  afford  the  true  measure  and  limit  of 
the  use  of  military  powers.  The  military  commander 
must  judge  who  the  public  enemy  are,  where  they  are, 
what  degree  of  force  shall  be  used  against  them,  and 
what  warlike  measures  are  best  suited  to  conquer  the 
enemy  or  restrain  him  from  future  mischief.  If  the 
enemy  be  in  small  force,  they  may  be  captured  by 
another  small  force ;  if  the  enemy  be  a  single  individual, 
he  may  be  captured  by  a  provost  guard  or  marshal.  If 
an  officer  in  the  honest  exercise  of  his  duty  makes  a 
mistake  in  arresting  a  friend  instead  of  an  enemy,  or  in 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  169 

detaining  a  suspicious  person,  who  may  be  finally  libe- 
rated, he  is  not  for  such  error  responsible  in  criminal 
or  civil  courts. 

Any  other  rule  would  render  war  impracticable,  and 
by  exposing  soldiers  to  the  hazard  of  ruinous  litigation, 
by  reason  of  liability  to  civil  tribunals,  would  render 
obedience  to  orders  dangerous,  and  thus  would  break 
down  the  discipline  of  armies. 

ARRESTS  ON  SUSPICION. 

Arrests  or  captures  of  persons  whose  conduct  gives 
reasonable  cause  of  suspicion  that  they  contemplate  acts 
of  hostility,  are  required  and  justified  by  military  and 
martial  law.  Such  arrests  are  precautionary.  The 
detention  of  such  suspected  persons  by  military  author- 
ity is,  for  the  same  reason,  necessary  and  justifiable.* 

Nothing  in  the  Constitution  or  laws  can  define  the 
possible  extent  of  any  military  danger.  Nothing  there- 
fore in  either  of  them  can  fix  or  define  the  extent  of 
power  necessary  to  meet  the  emergency,  to  control  the 
military  movements  of  the  army,  or  of  any  detachments 
from  it,  or  of  any  single  officer,  provost  marshal,  or 
.  private. 

Hence  it  is  worse  than  idle  to  attempt  to  lay  down 
rules  of  law  defining  the  territorial  limits  of  military 
operations,  or  of  martial  law,  or  of  captures  and  arrests. 

Wherever  danger  arises,  there  should  go  the  military 
means  of  defence  or  safeguard  against  it.  Wherever  a 
single  enemy  makes  his  appearance,  there  he  should  be 
arrested  and  restrained. 


Luther  vg.  Borden,   7  Howard's  Supreme  Court  Reports,  p.  1. 

22 


17(1  MILITARY     IRREST8    IN     II M  i .    OP    WAR. 


mm  SF,  OF  l'"\\  11;  OF   ARREST. 


The  powerof  arresl  and  imprisonment  is  doubtless  lia- 
ble  to  abuse.  Bu1  the  Liability  to  abuse  does  nol  prove; 
thai  the  power  does  not  exist.  "There  is  qo  power, 
says  the  Supreme  Court,  thai  is  not  susceptible  of  abuse 
The  remedy  for  this  as  well  as  for  all  other  officialmis- 
conduct,  if  it  should  occur,  is  to  be  found  intheConsti- 
tution  itself  Ena  free  government  the  danger  must  be 
remote,  since  in  addition  to  the  high  qualities  which 
the  Executive  must  be  presumed  to  possess  of  public 
virtue,  and  honest  devotion  to  the  public  interests,  the 
frequency  of  elections,  and  the  watchfulness  of  the  rep- 
resentatives of  the  nation,  cany  with  them  all  the 
checks  which  can  be  useful  to  guard  against  usurpation 
or  wanton  tyranny."* 

SAFEGUARDS. 

Our  safeguard  against  the  misuse  of  power  is  not,  by 
denying  its  existence,  to  deprive  ourselves  of  its  protec- 
tion in  time  of  war,  but  to  rely  on  the  civil  responsi- 
bility of  the  officer. 

The  right  of  impeachment  of  the  commander-in-chief, 
the  frequent  change  of  public  officers,  the  control  of  the 
army  and  navy  by  the  legislative  power  of  Congress, 
the  power  of  Congress  over  supplies,  the  power  of  Con- 
gress to  make  laws  regulating  and  controlling  the  use 
of  military  power  wherever  it  is  liable  to  abuse,  the 
fact  that  thf  Commander-in-chief  is  also  President  and 
chief  executive  officer  of  government,  and  the  great  intel- 
ligence and  nigh  character  of  our  soldiers,  are  all  safe- 

c  12  Wli  saton's  Reports,  page  32. 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  171 

guards  against  arbitrary  power  or  the  abuse  of  legal 
authority. 

EFFECT  OF  WAR  UPON  THE  COURTS  AND  OF  COURTS  UPON  THE  WAR. 

Justice  should  rule  over  the  deadly  encounters  of  the 
battle-field ;  but  courts  and  constables  are  there  quite 
out  of  place.  Far  from  the  centres  of  active  hostilities, 
judicial  tribunals  may  still  administer  municipal  law,  so 
long  as  their  proceedings  do  not  interfere  with  military 
operations.  But  if  the  members  of  a  court  should  im- 
pede, oppose,  or  interfere  with  military  operations  in 
the  field,  whether  acting  as  magistrates  or  as  individuals, 
they,  like  all  other  public  enemies,  are  liable  to  capture 
and  imprisonment  by  martial  law.  They  have  then 
become  a  belligerent  enemy. 

The  character  of  their  actions  is  to  be  determined  by 
the  military  commander ;  not  by  the  parchment  which 
contains  their  commissions.  A  judge  may  be  a  public 
enemy  as  effectually  as  any  other  citizen.  The  rebel- 
lious districts  show  many  examples  of  such  characters. 
Is  a  judge  sitting  in  a  northern  court,  and  endeavoring  to 
commit  acts  of  hostility  under  the  guise  of  adminis- 
tering law,  any  less  a  public  enemy  than  if  he  were 
holding  court  in  South  Carolina,  and  pretending  to  con- 
fiscate the  property  of  loyal  men  ?  Are  the  black  gown 
and  wig  to  be  the  protection  of  traitors  1 

General  Jackson  arrested  a  judge  in  the  war  of  1812, 
kept  him  in  prison  in  order  to  prevent  his  acts  of  judicial 
hostility,  and  liberated  him  when  he  had  repulsed  the 
enemy.  The  illegal  fine  imposed  on  him  by  that  judge 
was  repaid  to  the  general  after  many  years  under  a  vote 
of  Congress.    Why  should  a  judge  be  protected  from  the 


172  Miiii.\K\     LBBE8T8    in    iiMi:    OF    wau. 

con8equen(  ea  of  his  acl  of  hostility  more  than  the  cler- 
gyman, tli**  lawyer,  or  the  governor  of  a  State  '. 

The  public   Safety  must    no!    be  hazarded    by  enemies 

whatever  position   they  may  hold   in  public  or  private 

life.      The  mere  eminent    their   position,   the   more  dan- 
»us  their  disloyalty. 

Anion::  acts  of  hostility  which  constitute  judges,  pub- 
he  enemies. and  Bubjed  them  to  arrest,  are  these: 

1.  When  a  State  judge  is  judicially  apprised  that  a 
party  is  in  custody  under  i he  authority  of  the  United 
Slates,  he  can  proceed  no  further,  under  a  habeas  corpus 
or  other  process,  to  discharge  the  prisoner. 

If  he  orders  the  prisoner  to  be  discharged,  it  is  the 
duty  of  the  officer  holding  the  prisoner  to  resist  thai 
order,  and  the  laws  of  the  United  States  will  sustain  him 
in  doing  so,  and  in  arresting  and  imprisoning  the 
judge,  if  necessary* 

'_'.  So  Long  as  the  courts  do  not  interfere  with  military 
operations  ordered  by  the  commander-in-chief,  litigation 
may  proceed  as  usual ;  but  if  that  litigation  entangles 
and  harasses  the  soldiers  or  the  officers  so  as  to  disable 
them  from  doing  their  military  duty,  the  judges  and  the 
actors  being  hostile,  and  using  legal  processes  for  the 
purpose  and  design  of  impeding  and  obstructing  the 
ssary  military  operations  in  time  of  war,  the  courts 
and  lawyers  are  liable  to  precautionary  arrest  and  con- 
finement, whether  they  have  committed  a  crime  known 
to  the  statute  law  or  not.  Military  restraint  is  to  be  used 
tor  the  prevention  of  hostilities,  and  public  safety  in  time 
of  civil  war  will  not  permit  courts  or  constables,  colleges 

°  Ableman  vs.  Booth,  21  How.  524-5. 


MILITARY    ARRESTS    IN    TIME    OF   WAR.  173 

or  slave-pens,  to  be  used  as  instruments  of  hostility  to  the 
country. 

When  a  traitor  is  seized  in  the  act  of  committing  hos- 
tility against  the  country,  it  makes  no  difference  whether 
he  is  captured  in  a  swamp  or  in  a  court-house,  or  whether 
he  has  in  his  pocket  the  commission  of  a  judge  or  a 
colonel. 

Commanders  in  the  field  are  under  no  obligations  to 
take  the  opinions  of  judges  as  to  the  character  or  extent 
of  their  military  operations,  nor  as  to  the  question  who 
are  and  who  are  not  public  enemies,  nor  who  have 
and  who  have  not  given  reasonable  cause  to  believe  that 
acts  of  hostility  are  intended.  These  questions  are,  by 
the  paramount  laws  of  war,  to  be  settled  by  the  officer 
in  command. 

MILITARY  ARRESTS  ARE  NOT  FORBIDDEN  BY  THE  CONSTITUTION. 

The  framers  of  the  Constitution  having  given  to  the 
commander-in-chief  the  full  control  of  the  army  when 
in  active  service,  subject  only  to  the  articles  of  war,  have 
therefore  given  him  the  full  powers  of  capture  and  arrest 
of  enemies,  and  have  placed  upon  him  the  corresponding 
obligation  to  use  any  and  all  such  powers  as  may  be 
proper  to  insure  the  the  success  of  our  arms.  To  carry 
on  war  without  the  powerof  capturingor  arresting  enemies 
would  be  impossible.  We  should  not,  therefore,  expect 
to  find  in  the  Constitution  any  provision  which  would 
deprive  the  country  of  any  means  of  self-defence  in  time 
of  unusual  public  danger. 

We  look  in  vain  in  the  Constitution  for  a  clause  which 
in  any  way  limits  the  methods  of  using  war  powers 
when  war  exists. 


174  Mil. I  i\\:\     \  IN     l  IME    OP    WAR. 

Some  persons  have  turned  attention  to  certain  pass 
in  the  amendments  relating,  as  was  supposed,  to  this 
subject     Lei  us  examine  them : 

A.STK  lb  IV.  "The  righl  of  the  people  to  be  Becure  is  their  per- 
ipere,  and  effects  against  unreasonable  searches. and 
shall  ii"t  be  violated." 

This  amendmenl  merely  declares  thai  the  righl  ol 
being  secure  against  unreasonable  seizures  or  arrests 
shall  nol  be  violated.  It  does  not  declare  thai  no.arresis 

shall  be  made.  Will  any  one  deny  thai  il  is  reasonable 
to  arresl  or  capture  the  person  of  a  public  enemy  I 

It'  all  arrests,  reasonable  or  unreasonable,  were  pro- 
hibited, public  safety  would  be  disregarded  in  favor  of 
the  rights  of  individuals. 

Nol  only  may  military,  but  even  civil,  arrests  be  made 
when  reasonable. 

ARRESTS  WITHOUT  WARRANT. 

It  is  objected  that  military  arrests  arc  made  without 
warrant.     The  military  order  is  the  warrant  authorizing 
'.  issuing  from  a  commander,  in  like  manner  as  the 
judicial  order  is  the  warrant  authorizing  arrest,  issuing 
from  a  court.  But  even  civil  arrests  at  common  law  may 
be  made  without  warrant  by  constables,  or  by  private 
us. — (1  Chitty,  C.  L.,  15  to  22.)    There  is  a  liabil- 
i  fine  and  imprisonment  if  an  offender  is  voluntarily 
permitted  to  escape  by  a  person  present  at  the  commis- 
sion of  a  felony  or  the  infliction  of  a  dangerous  wound. 
Whenever  there  is  probable  ground  of  suspicion  that 
a  felony  has  been  committed,  a  private  person  may  with- 
out  warrant    arrest  the   felon,  and   probable  cause  will 
protect  the  captor  from  civil  liability. 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  175 

"When  a  felony  lias  been  committed,  a  constable  may 
arrest  a  supposed  offender  on  information  without  a  pos- 
itive charge,  and  without  a  positive  knowledge  of  the 
circumstances."  And  Chitty  says,  page  217,  "A  con- 
stable may  justify  an  imprisonment,  without  warrant,  on 
a  reasonable  charge  of  felony  made  to  him,  although  he 
afterwards  discharge  the  prisoner  without  taking  him 
before  a  magistrate,  although  it  turns  out  that  no  felony 
was  committed,  by  any  one." 

In  Wakely  vs.  Hart,  6  Binney,  318,  Chief  Justice  Tilgh- 
man  says  of  the  constitution  of  Pennsylvania,  which  is 
nearly  in  the  same  words  on  this  subject  as  the  Consti- 
tution of  the  United  States : 

"  The  plaintiffs  insist  that  by  the  constitution  of  this  State  no 
arrest  is  lawrul  without  warrant  issued  on  probable  cause,  supported 
by  oath.  Whether  this  be  the  true  construction  of  the  constitution 
is  the  main  point  in  the  case.  It  is  declared  in  the  9th  article,  sec- 
tion 7,  '  that  the  people  shall  be  secure  in  their  persons,  houses,  pa- 
pers, and  possessions,  from  unreasonable  arrests  and  that  no  war- 
rant to  search  any  place,  or  seize  any  person  or  thing,  shall  issue 
without  describing  them  as  nearly  as  may  be,  nor  without  probable 
cause,  supported  by  oath  or  affirmation.' 

"The  provisions  of  this  section,  so  far  as  concern  warrants,  only 
guard  against  their  abuse  by  issuing  them  without  good  cause,  and  in 
so  general  and  vague  a  form  as  may  put  it  in  the  power  of  officers 
who  execute  them  to  harass  innocent  persons  under  pretence  of  sus- 
picion ;  for,  if  general  warrants  were  allowed,  it  must  be  left  to  the 
discretion  of  the  officer  on  what  persons  or  things  they  are  to  be  ex- 
ecuted. Bat  it  is  nowhere  said  that  there  shall  be  no  arrest  with- 
out warrant.  To  have  said  so  would  have  endangered  the  safety  of 
society.  The  felon  who  is  seen  to  commit  murder  or  robbery  must 
be  arrested  on  the  spot,  or  suffered  to  escape.  So,  although  if  not 
seen,  yet  if  known  to  have  committed  a  felony,  and  pursued  with  <>i 
without  warrant,  he  may  be  arrested  by  any  person. 

"And  even  where  there  is  only  probable  cause  of  suspicion,  ix  pri- 
vate person  may,  without  warrant,   at  his  peril,  make  the  arrest.      1 


176  MILITARY    AlRRESTS    IN    TIME    OF    WAR. 

his  peril,  for  nothing  short  of  proving  the  felony  will  justify 
the  arrest ;"  (that  is,  by  a  private  person  on  suspicion.)  "These 
principles  of  common  law  are  essential  to  the  welfare  of  society,  and 
m>t  intended  to  be  altered  or  impaired  by  the  constitution." 

The  right,  summarily,  to  arrest  persons  in  the  act  of 
committing  heinous  crimes  has  thus  been  sanctioned 
from  ancient  times  by  the  laws  of  England  and  America. 
No  warrant  is  required  to  justify  arrests  of  persons  com- 
mitting felonies.  The  right  to  make  such  arrests  is 
essential  to  the  preservation  of  the  existence  of  society, 
though  its  exercise  ought  to  be  carefully  guarded.  The 
great  problem  is  to  reconcile  the  necessities  of  govern- 
ment with  the  security  of  personal  liberty. 

If,  in  time  of  peace,  civil  arrests  for  felonies  may  be 
made  by  private  citizens  without  warrant,  a  fortiori,  mil- 
itary arrests  in  time  of  war  for  acts  of  hostility,  either 
executed  or  contemplated,  may  be  made  under  the  war- 
rant of  a  military  command.  And  the  provision  that 
unreasonable  seizures  or  arrests  are  prohibited  has  no 
application  to  military  arrests  in  time  of  war. 

OBJECTION    THAT    ARRESTS   ARE    MADE  WITHOUT    INDICTMENT. 

The  5th  article  of  the  amendments  of  the  Consti- 
tion  provides  that — 

•  N o  person  shall  be  held  to  answer  for  a  capital,  or  otherwise  in- 
famous crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury, 
except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the  militia 
when  in  actual  service  in  time  of  war  or  public  danger;  nor  shall  any 
■  ii  be  subject  for  the  same  offence  to  be  twice  put  in  jeopardy  of 
life  or  limb;  nor  shall  be  compelled  in  any  criminal  case  to  be  a  wit- 
ness against  himself,  nor  be  deprived  of  life,  liberty,  or  property,  with- 
out due  process  of  law ;  nor  shall  private  property  be  taken  for  public 
use  without  just  compensation." 

This  article  has  no  reference  to  the  rights  of  citizens  un- 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  177 

der  the  exigencies  of  war,  but  relates  only  to  their  rights  in 
time  of  peace.  It  is  provided  that  no  person  shall  be  sub- 
ject for  the  same  offence  to  be  twice  put  in  jeopardy  of  life 
or  limb.  If  rebellion  or  treason  be  one  of  the  offences 
here  alluded  to,  and  a  rebel  has  been  once  under  fire,  and 
thus  been  put  in  jeopardy  of  life  or  limb,  (in  one  sense 
of  that  phrase,)  he  could  not  be  fired  at  a  second  time 
without  violating  the  Constitution,  because  a  second  shot 
would  put  him  twice  in  jeopardy  for  the  same  offence. 

"Nor  shall  he  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law."  If  this  provision  relates 
to  the  rights  of  citizens  in  time  of  war,  it  is  obvious  that 
no  property  can  be  captured,  no  rebel  killed  in  battle  or 
imprisoned  by  martial  law. 

The  claim  that  "  no  person  shall  be  held  to  answer 
for  a  capital  or  otherwise  infamous  crime,  unless  upon  a 
presentment  or  indictment  of  a  grand  jury,  except  in 
cases,"  &c,  in  like  maimer  applies  only  to  the  rights  of 
citizens  in  time  of  peace. 

What  are  "cases  arising  in  the  land  or  naval  forces,  or 
in  the  militia,  when  in  actual  service  in  time  of  war  or 
public  danger  V 

Suppose  the  Union  forces  arrest  a  spy  from  the  ene- 
my's camp,  or  catch  a  band  of  guerillas,  neither  the  spy 
nor  the  guerillas  belong  to  our  land  forces  or  navy. 
The  enemy  are  no  part  of  our  forces  or  of  our  militia; 
and  while  this  provision  covers  offences  therein  speci- 
fied, if  committed  by  our  troops,  and  allows  them  to  be 
dealt  with  by  martial  law,  it  would  (if  it  is  applicable 
in  time  of  war)  prevent  our  executing  martial  law 
against  such  enemies  captured  in  war.  We  should,  under 
such  a  construction,  be  required  to  indict  and  prosecute 


ITS  IflLITABT     UUtESTS    in     riMB   OF    WAB. 

our  enemy  for  capital  crimes,  instead  of  capturing  an  I 
treating  them  as  prisoners  of  war,  or  punishing  them 
according  to  the  laws  of  war. 

The  absurdity  of  such  a  construction  is  obvious. 
The  language  is  inapplicable   to    a    case  <>f   military 

arrest  in    war   lime.      No  soldier   is  held  to  answer    for  a 

crime;  In*  is  captured  as  a  prisoner  of  war,  to  be  re- 
leased, paroled,  or  exchanged.  Ho  is  never  expected  to  an- 
swer to  any  indictment ;  prisoners  of  war  are  not  indicted- 

Nor  can  any  prisoner  be  held  to  answer  for  any  crime 
unless  upon  a  charge  of  such  crime  made  before  some 
tribunal.  No  such  charge  is  made  against  prisoners  of 
war.  nor  are  they  charged  with  any  crime,  inlamous  or 
otherwise,  and  therefore  they  are  not  held  to  answer 
any. 

Hence  that  clause  in  the  Constitution  which  provides 
tor  trial  by  jury,  the  right  to  be  informed  of  the  nature 
and  cause  of  the  accusation,  &c,  relates  in  express  terms 
only  to  criminal  prosecutions,  and  has  nothing  to  do  with 
military  arrests  or  the  procedures  of  martial  law. 

Therefore  it  is  obvious  that  while  criminal  proceed- 
ings against  persons  not  in  the  naval  or  military  service 
guarded  in  time  of  peace,  and  the  outposts  of  justice 
arc  secured  by  freedom  from  unreasonable  arrests, 
and  in  requiring  indictment  .to  be  found  by  grand 
jurors,  speedy  and  public  trial  by  an  impartial  jury,  infor- 
mation of  the  nature  of  the  charges,  open  examination 
of  witnesses,  and  aid  of  counsel,  &c,  all  these  high 
privileges  are  not  accorded  to  our  public  enemy  in 
time  of  war,  nor  to  those  citizens  who  commit  mili- 
tary offences,  which,  not  being  against  any  statute  or 
municipal  law,  cannot  be  the  foundation  of  any  indict- 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  179 

ment,  punishment,  or  trial  by  jury,  and  do  not  constitute 
any  capital  or  otherwise  infamous  crime,  or  to  persons 
who  commit  acts  which  impede,  embarrass,  and  tend  to 
thwart  the  military  measures  of  the  government. 

The  safeguards  of  criminal  procedures  in  courts  of 
justice  in  time  of  peace  are  not  to  be  construed  into 
protection  of  public  enemies  in  time  of  war. 

THE    CONSTITUTION    SANCTIONS    MILITARY    ARRESTS. 

The  Constitution  itself  authorizes  courts-martial. 
These  courts  punish  for  offences  different  from  those 
provided  for  by  any  criminal  statute.  Therefore  it  fol- 
lows that  crimes  not  against  statute  laws  may  be  pun- 
ished by  law  according  to  the  Constitution,  and  also  that 
arrests  necessary  to  bring  the  offenders  before  that  tri- 
bunal are  lawful. 

In  Dynes  vs.  Hoover*  the  evidence  was  that  an  attempt 
had  been  made  to  hold  a  marshal  liable  for  executing  the 
order  of  the  President  of  the  United  States  in  committing 
Dynes  to  the  penitentiary  for  an  offence  of  which  he  had 
bten  adjudged  guilty  by  a  naval  court  martial. 

This  case  shows  that  the  crimes  to  be  punished,  and 
the  modes  of  procedure  by  courts-martial  are  different 
from  those  of  ordinary  civil  tribunals;  that  the  jurisdic- 
tion of  these  classes  of  tribunals  is  distinct,  and  that  the 
judicial  power  and  the  military  power  of  courts-martial 
are  independent  of  each  other,  and  both  authorized  by 
the  same  Constitution,  and  courts-martial  may  punish 
offences  other  than  those  provided  for  by  criminal  stat- 
utes.    And   if  they  may  do  so,  it   follows  that  persons 

0  20  Howard's  Supreme  Court  Reports,  page  65. 


|M>  Mll.liAU'\     LRRE8T8    IN    TIME    OF    WAR. 

may  be  arrested   for  such  offences.      The  law  is  laid 

down  by  ili<-  court  as  follows : 

•'The  demurrer  admits  that  the  court-martial  was  legally 
organized,  and  the  crime  charged  was  one  forbidden  by 
law;  thai  the  courl   had  jurisdiction  of  the  charge  as  it 

was  made;    that  a  trial  took  place  before  the  court   upon 

the  charge,  and  the  defendant's  plea  of  not  guilty;  and 

that,  upon  the  evidence  in  the  case,  the  court  found 
Dynes  guilty  of  an  attempt  to  desert,  and  sentenced  him 
to  l»e  punished  as  has  been  already  stated;  that  the  sen- 
tence of  the  court  was  approved  by  the  Secretary,  and 
by  his  direction  Dynes  was  brought  to  Washington  ;  and 
that  the  defendant  was  marshal  tor  the  District  of  Colum- 
bia, and  that  in  receiving  Dynes  and  committing  him  to 
the  keeper  of  the  penitentiary,  he  obeyed  the  orders  of 
the  President  of  the  United  States  in  execution  of  the 
sentence.  Among  the  powers  conferred  upon  Congress 
by  the  8th  section  of  the  1st  article  of  the  Constitution  are 
the  following:  'To  provide  and  maintain  a  navy ;'  'to 
make  rules  for  the  government  of  the  land  and  naval 
forces.'  And  the  eighth  amendment,  which  requires  a 
presentment  of  a  grand  jury  in  cases  of  capital  or  other- 
wise infamous  crime,  expressly  excepts  from  its  opera- 
tion "cases  arising  in  the  land  or  naval  forces.'  And 
by  the  2d  section  of  the  2d  article  of  the  Constitution, 
it  is  declared  that  'the  President  shall  be  commander- 
in-chief  of  the  army  and  navy  of  the  United  States,  and 
of  the  militia  of  the  several  States  when  called  into  the 
actual  service  of  the  United  States.' 

"These  provisions  show  that  Congress  has  the  powrer 
to  provide  for  the  trial  and  punishment  of  military  and 
naval  offences  in  tlie  manner  then  and  now  practiced  by 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  181 

civilized  nations,  and  that  the  power  to  do  so  is  given 
without  any  connexion  between  it  and  the  3d  article 
of  the  Constitution,  defining  the  judicial  power  of  the 
United  States;  indeed,  that  the  two  powers  are  entirely 
independent  of  each  other." 

The  fact  that  the  power  exists  of  suspending  the  writ 
of  habeas  corpus  in  time  of  rebellion,  when  the  public 
safety  requires  it,  shows  that  the  framers  of  the  Consti- 
tution expected  that  arrests  would  be  made  for  crimes 
not  against  municipal  law,  and  that  the  administration  of 
the  ordinary  rules  of  law  on  habeas  corpus  would  require 
discharge  of  prisoners,  and  that  such  discharge  might 
endanger  public  safety.  It  was  to  protect  public  safety 
in  time  of  rebellion  that  the  right  to  suspend  the  habeas 
corpus  was  left  in  the  power  of  government. 

MILITARY  POWERS  MAY  BE  DELEGATED. 

In  the  course  of  the  preceding  remarks  the  com- 
mander-in-chief has  been  the  only  military  authority 
spoken  of  as  authorized  to  order  arrests  and  seizures 
His  powers  may  be  delegated  to  officers,  and  may  be 
exercised  by  them  under  his  command.  So  also  the 
Secretaries  of  War  and  State  are  public  officers  through 
whom  the  President  acts  in  making  orders  for  arrests, 
and  their  acts  are  in  law  the  acts  of  the  President.  It 
is  necessary  to  the  proper  conduct  of  war  that  many  ii 
not  most  of  the  powers  of  the  President  or  commander 
should  be  exercised  by  his  Secretaries  and  his  generals, 
and  that  many  of  their  powers  should  be  executed  by 
officers  under  them  ;  and  although  it  not  seldom  happens 
that  subalterns  use  the  powers  of  arrest  and  detention 


Iv_'  miiii\i;v    A.RBESTS    in    riME    OF    \v\i.\ 

yel  tlic  inconvenience  resulting  from  this  fact  is  one  oi 
the  inevitable  misfortunes  of  war. 

OBBDIENI  B   OP   OBDBRS    IS   JUSTIFICATION. 

Whatever  military  man  obeys  the  order  of  his  supe- 
rior officer,  is  justified  by  law  in  doing  so.  Obedience 
to  orders  is  a  part  of  the  lav*  of  the  land;  a  violation  of 
thai  law  subjects  the  soldierto  disgraceful  punishment. 
Ads  done  in  obedience  to  military  orders  will  nol  sub- 
jecl  the  agenl  to  civil  or  criminal  liability  in  courts  of 
law.  But,  on  the  other  hand,  any  abuse  of  military 
authority  subjects  the  offender  to  civil  liability  for  such 
abuse,  and  he  who  authorized  the  wrong  is  responsible 
for  it. 

OFFICERS  MAKING  AB BESTS  NOT  LIABLE  TO  CIVIL  SUIT  OR  CRIMINAL 

PBOSECUTION. 

Thai  military  arrests  are  deem*  d  necessary  for  public 
safely  by  Congress  is  shown  by  the  act  of  March  3, 
L863,  ch.  81,  wherein  it  is  provided  that  no  person  ar- 
d  by  authority  of  the  President  of  the  United  States 
shall  be  discharged  from  imprisonment  so  long  as  the  war 
and  the  President  shall  see  lit  to  suspend  the  privi- 
lege  of  the  writ  of  habeas  corpus. 

The  4th  section  of  the  same  act  provides  "that  any 
order  of  the  President,  or  under  his  authority,  made  al 
an)  time  during  the  existence  of  this  present  rebellion, 
shall  he  ;i  defence  in  all  courts  to  any  action  or  prosecu- 
tion, civil  or  criminal,  pending  or  to  he  commenced  for 
any  search,  seizure,  arrest,  or  imprisonment,  made,  done, 
or  committed,  or  acts  omitted  to  be  done  under  and  by 
virtue  of  such  order,  or  under  color  of  any  law  of  Con- 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  183 

gress,  and  such  defence  may  be  made  by  special  plea,  or 

under  the  general  issue." 

The  same  act  further  provides  that  actions  against  offi- 
cers and  others  for  torts  in  arrests  commenced  in  State 
courts  may  be  removed  to  circuit  courts,  and  thence  to 
the  Supreme  Court.  The  jurisdiction  of  State  courts 
thereupon  ceases,  and  the  rights  of  the  defendant  may 
be  protected  by  the  laws  of  the  United  States  adminis- 
tered by  the  Supreme  Court.  By  these  provisions  there 
are  secured  protection  for  the  past  and  security  in  the 
future  performance  of  military  and  civil  duties  under 
orders  of  the  President  in  time  of  war;  and  the  statute 
contains  an  implied  admission  of  the  necessity  to  public 
welfare  of  arrests  for  crimes  not  against  statutes,  but  en- 
dangering public  safety,  and  of  imprisonments  for 
offences  not  known  to  the  municipal  laws,  but  yet 
equally  dangerous  to  the  country  in  civil  war. 

ARBITRARY     POWER    NOT    CONSISTENT    WITH     CONSTITUTIONAL    OR 
FREE    GOVERNMENTS. 

The  exercise  of  irresponsible  powers  is  incompatible 
with  constitutional  government.  Unbridled  will,  the 
offspring  of  selfishness  and  of  arrogance,  regards  no  rights, 
and  listens  to  no  claims  of  reason,  justice,  policy,  or 
honor.  Its  imperious  mandate  being  its  only  law,  arbi- 
trary power  sucks  out  the  heart's  blood  of  civil  liberty. 
Vindicated  by  our  fathers  on  many  a  hard-fought  battle- 
field, and  made  holy  by  the  sacrifice  of  their  noblest 
sons,  that  liberty  must  not  be  wounded  or  destroyed; 
and  in  time  of  peace,  in  a  free  country,  its  power  should 
shelter  loyal  citizens  from  arbitrary  arrests  and  unrea- 
sonable seizures  of  their  persons  or  property. 


1M  Mii.li'AKY    LRREST8    in     11 M  l :    OF    WAR, 


,  ;;i  l     MEANING    <>i     "ABBITBABY        IS    DISTINGUISHED    PBOM    "  DIS- 

I  i;i   i  ION  \i:\ ." 

\\  hat  arrests  arc  "arbil  ran  '." 

ACmong  ili'-  acts  "t"  war  \\  hich  have  been  severely  cen- 
Biired  i>  thai  class  of  military  captures  reproachfully 
styled  "arbitrary"  arrests. 

What  is  the  true  meaning  of  the  word  "arbitrary  ■" 
When  used  to  characterize  military  arrests  il  means  such 

as  are  made  at  the  mere  will  and  pleasure  of  the  officer, 

without  right,  and without  lawful  authority.  Butpowers 
are  net  arbitrary  because  they  may  he  discretionary. 
The  authority  of  judges  IS  often  discretionary:   and  even 

it' discretion  he  governed  by  rules,  the  judge  makes  his 
own  rules  :  yet  no  one  can  justly  claim  that  such  judicial 
authority  is  arbitrary. 

The  existence  of  an  authority  may  be  undeniable, 
while  the  mode  of  usinir  it  may  he  discretionary.  A 
power  is  arbitrary  only  when  it  is  founded  upon  no 
tful  authority,  civil  or  military.  It  may  be  within 
the  discretion  ot  a  commander  to  make  a  military  order; 
to  dictate  its  terms;  to  act  upon  facts  and  reasons  known 
only  to  himself;  it  may  suddenly  and  violently  affect  the 
property,  liberty,  or  life  of  soldiers  or  of  citizens;  yet 
such  an  order,  being  the  lawful  use  of  a  discretionary 
an  hority,  is  not  the  exercise  of  arbitrary  power.  When 
such  orders  are  issued  on  the  field,  or  in  the  midst  oi 
active  operations,  no  objection  is  made  to  them  on  the 
pretence  that  they  are  lawless  or  unauthorized,  nor  for 
the   reason  that   they  must  be  instantly  and  absolutely 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  185 

The  difference  is  plain  between  the  exercise  of  arbi- 
trary power  and  the  arbitrary  exercise  of  power.  The 
former  is  against  law  ;  the  latter,  however,  ungraciously 
or  inconsiderately  used,  is  lawful. 

MILITARY   ARRESTS   LAWFUL. 

The  laws  of  war,  military  and  martial,  written  and 
unwritten,  founded  on  the  necessities  of  government,  are 
sanctioned  by  the  Constitution  and  laws,  and  recognized 
as  valid  by  the  Supreme  Court  of  the  United  States. 

Arrests  made  under  the  laws  of  war  are  neither  arbi- 
trary nor  without  legal  justification. 

In  Cross  vs.  Harrison,  Judge  Wayne,  delivering  the 
opinion,  (16  Howard,  189,  190,)  says: 

"  Early  in  1847  the  President,  as  constitutional  commander-in- 
chief  of  the  army  and  navy,  authorized  the  military  and  naval  com- 
manders of  our  forces  in  California  to  exercise  the  belligerent  rights 
of  a  conqueror,  and  to  form  a  civil  government  for  the  conquered 
country,  and  to  impose  duties  on  imports  and  tonnage  as  military 
contributions  for  the  support  of  the  government  and  of  the  army, 
which  had  the  conquest  in  possession.  No  one  can  doubt  that  these 
orders  of  the  President  and  the  action  of  our  army  and  navy  com- 
manders in  California,  in  conformity  with  them,  were  according  to  the 
law  of  arms,"  &c. 

So,  in  Fleming  vs.  Paige,  (9  Howard,  615,)  Chief 
Justice  Taney  says : 

"  The  person  who  acted  in  the  chai'acter  of  collector  in  this  in- 
stance, acted  as  such  under  the  authority  of  the  military  commander 
and  in  obedience  to  his  orders ;  and  the  regulations  he  adopted  were 
not  those  prescribed  by  law,  but  by  the  President  in  his  character 
as  commander-in-chief." 

24 


186  Mii.iiMa     IARESTS    in    iiMi;   OP   WAR. 

It  is  established  03  these  opinions  thai  military  or- 
ders, in  accordance  with  martial  law  or  the  laws  of  war, 
though  they  ma}  be  contrary  to  municipal  laws;  and  the 
use  of  the  usual  means  of  enforcing  such  orders  by  mil- 
power,  including  capture,  arrest,  imprisonment,  or 
the  destruction  of  life  and  property,  are  authorized  and 
sustained  noon  the  firm  basis  of  martial  law,  which  is. 
in  time  of  war,  constitutional  law. 

A  military  arrest  being  one  of  the  recognized  neces- 
sities of  warfare,  is  as  legal  and  constil  utional  a  procedure, 
under  the  laws  of  war,  as  an  arrest  by  civil  authority 
by  the  sheriff,  alter  the  criminal  has  been  indicted  by  a 
grand  jury  for  a  statute  offence. 

In  time  of  peace  the  interference  of  military  force  is 
offensive  to  a  free  people.  Its  decrees  seem  overbeaf- 
and  its  procedures  violent.  It  has  few  safeguards 
and  no  restraints.  The  genius  of  republican  govern- 
ment revolts  against  permanent  military  ride.  Hence 
the  suspicions  of  the  people  arc  easily  aroused  upon  any 
appearance  of  usurpation.  It  is  for  this  reason  that 
some  opponents  of  the  government  have  endeavored  to 
cripple  the  war  power  of  the  President  by  exciting 
natural,  but  unfounded  apprehension  that  military  ar- 
.  a  familiar  weapon  of  warfare,  can  be  employed 
only  at  the  hazard  of  civil  liberty. 

ON  WHAT  GROUND  FORCF,  IS  JUSTIFIABLE. 

When  the  administration  of  laws  is  resisted  by  an 
armed  public  enemy ;  when  government  is  assaulted  or 
overthrown;  when  magistrate  and  ruler  are  alike  pow- 
erless, the  nation  musl  assert  and  maintain  its  rights  by 
force  of  arms.     Government  must  fight  or  perish.     Self- 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  187 

preservation  requires  the  nation  to  defend  its  rights  by 
military  power.  The  right  to  use  military  power  rests 
on  the  universal  law  of  self-defence. 

MARTIAL    LAW. 

When  war  is  waged,  it  ought  not  to  degenerate  into 
unbridled  brutality,  but  it  should  conform  to  the  dictates 
of  justice  and  of  humanity.  Its  objects,  means,  and 
methods  should  be  justifiable  in  the  forum  of  civilized 
and  Christian  nations.  The  laws  or  rules  which  usually 
govern  this  use  of  force  are  called  military  and  martial 
law,  or  the  laws  of  war. 

Principles  deducible  from  a  consideration  of  the  na- 
ture, objects,  and  means  of  war  will,  if  understood,  re- 
move from  the  mind  the  apprehension  of  danger  to  civil 
liberty  from  military  arrests  and  other  employment  of 
force.  When  war  exists,  whatever  is  done  in  accordance 
with  the  laws  of  war  is  not  arbitrary,  and  is  not  in  dero- 
gation of  the  civil  rights  of  citizens,  but  is  lawful,  justifia- 
ble, and  indispensable  to  public  safety. 

WAll    POWER    HAS    LIMITS. 

Although  the  empire  of  the  war  power  is  vast,  yet  it 
has  definite  boundaries,  wherein  it  is  supreme.  It  over- 
rides municipal  laws  and  all  domestic  institutions  or  re- 
lations which  impede  or  interfere  with  its  complete 
sway.  It  reigns  uncontrollable  until  its  legitimate  work 
is  executed;  but  then  it  lays  down  its  dripping  sword 
at  the  feet  of  Justice  whose  wrongs  it  has  avenged. 

It  is  not  now  proposed  to  define  the  limits  and  re- 
strictions imposed  by  the  laws  of  warfare  upon  the  gen- 


Mill  i  \:;\     LRRESTS    in*    TIME   OF    WAR. 

eral  proceedings  of  belligerents.  It  is  to  one  only  of 
the  usual  methods  of  war  thai  attention  is  now  directed, 
namely,  to  the  capture  and  detention  of  public  enemies. 

kBRBSI  -  m  CB8S  \kn  . 

Effectual  hostilities  could  not  ho  prosecuted  without 
exercising  the  right  to  capture  and  imprison  hostile  per- 
sons.     Barbarous  nations  only  would  justify  the  killing 

ill' those  who  mighl  tall  into  their  power.  It  is  now  too 
late  to  question  the  authority  of  martial  law  which  sanc- 
tions the  arrest  and  detention  of  those  who  engage  in 
foreign  or  civil  war.  The  imprisonment  of  such  per- 
sons is  much  more  important  to  the  public  safety  in  civil 
than  in  international  warfare. 

.MILITARY    CRIMES. 

Military  crimes,  or  crimes  of  war,  include  all  acts  of 
hostility  to  the  country,  to  the  government,  or  to  any 
department  or  officer  thereof;  to  the  army  or  navy,  or  to 
any  person  employed  therein  :  provided  that  such  acts  of 
hostility  have  the  effect  of  opposing,  embarrassing,  de- 
feating, or  even  of  interfering  with  our  military  or  naval 
operations  in  carrying  on  the  war,  or  of  aiding,  encour- 
aging, or  supporting  the  enemy. 

According  to  the  laws  of  war,  military  arrests  may  be 
made  for  the  punishment  or  prevention  of  military 
crimes. 

DO  I  DLE  LIAB'LITY. 

Such  crimes  may  or  may  not  be  offences  against 
statutes.  The  facl  that  an  act  of  hostility  is  against 
municipal  as  well  as  martial   law,  even  though  it  may 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  189 

subject  the  offender  to  indictment  in  civil  tribunals,  does 
not  relieve  him  from  responsibility  to  military  power. 

To  make  civil  war  against  the  United  States  is  to 
commit  treason.  Such  act  of  treason  renders  the 
traitor  liable  to  indictment  and  condemnation  in  the 
courts,  and  to  capture,  arrest,  or  death  on  the  field  of 
battle.  But  because  a  traitor  may  be  hung  as  a  crimi- 
nal by  the  sheriff,  it  does  not  follow  that  he  may  not  be 
captured,  arrested,  or  shot  as  a  public  enemy  by  the  sol- 
diers. 

An  act  of  hostility  may  thus  subject  the  offender  to 
twofold  liability :  first  to  civil,  and  then  to  military  tri- 
bunals. Whoever  denies  the  right  to  make  military 
arrests  for  crimes  which  are  punishable  by  civil  tribu- 
nals, would  necessarily  withhold  one  of  the  usual  and 
most  effective  and  essential  means  of  carrying  on  war. 
Whoever  restricts  the  right  to  cases  where  crimes  have 
been  committed  in  violation  of  some  special  statute, 
would  destroy  one  of  the  chief  safeguards  of  public 
security  and  defence. 

ACTS  MADE  CRIMINAL  BY  A  STATE  OF  WAR. 

The  quality  of  an  act  depends  on  the  time,  place,  and 
circumstances  under  which  it  is  performed. 

Acts  which  would  have  been  harmless  and  innocent 
in  time  of  peace,  become  dangerous,  injurious,  and  guilty 
in  time  of  war.  The  rules  and  regulations  of  "  the 
service"  contain  many  illustrations  of  this  fact.  For  a 
soldier  to  speak  contemptuously  of  a  superior  officer 
might,  as  between  two  civilians,  be  a  harmless  or  bene- 
ficial use  of  "free  speech;"  but  as  in  time  of  war  such 
"  free  speech"  might  destroy  discipline,  encourage  diso- 


190  MIL]  .  \..v.     LRRJ     is    in     |  [ME    OF    w  LB. 

bedience  of  orders,  or  even  break  up  the  confidence  »i 
the  soldi. ts  in  their  commanders,  such  speaking  is 
strictly  forbidden,  and  becomes  q  crime. 

Mos1  of  the  regulations  which  require  obedience  to 
orders  are  such  thai  disregard  of  them  would,  in  time 

peace,  by  civilians,  be  no  breach  of  law  or  of  morals, 
y\  ;i  breach  of  them  by  soldiers  becomes  a  moral  and 
a  military  crime. 

In  like  manner,  a  citizen  may  commil  acts  to  which 
he  is  accustomed  in  ordinary  times,  bu1   which  become 

ive  offences  in  time  of  war,  although  nol  embraced  in 

the  civil  penal  code. 

Actions  not  constituting  any  offence  against  the  mu- 
nicipal code  of  a  country,  having  become  highly  inju- 
rious and  embarrassing  to  military  operations,  may  and 
musl  be  prevented  if  nol  punished.  Such  actions,  being 
crimes  against  military  or  martial  law  or  the  laws  of 
war,  can  be  prevented  only  by  arrest  and  confinement 
or  destruction  of  the  offender.  It"  an  act  which  inter- 
feres with  military  operations  is  not  against  municipal 
law.  t  he  greater  is  t  he  reason  for  preventing  it  by  martial 
law.  And  if  such  an  action  cannot  be  punished  or  pre- 
vented by  civil  or  criminal  law,  this  fact  makes  stronger 
the  necessity  tor  preventing  evil  consequences  by  arrest- 
ing the  offender. 

Absence  of  penal  law  imperatively  demands  applica- 
tion of  military  preventive  process — i.  e.,  arrest. 

ARREST  or  [NNOCENT  PERSONS. 

Innocent  persons  arc,  under  certain  circumstances, 
liable  to  military  arrest  in  time  of  civil  war.  Suppose 
an  army  retreating  from  an  unsuccessful  battle,  and 
desirous   of  concealing  from  the  enemy  the  number, 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  191 

position,  and  directions  taken  by  the  forces ;  and  if,  in 
order  to  prevent  these  facts  from  becoming  known  to 
their  pursuers,  the  persons  who  are  met  on  the  retreat 
are  captured  and  carried  away,  can  any  one  doubt  the 
right  of  making  such  arrests  ?  However  loj'al  or 
friendly  those  persons  may  be,  yet,  if  seized  by  a  pur- 
suing enemy,  they  might  be  compelled  to  disclose  facts 
by  which  the  retreating  army  could  be  destroyed. 
Hence,  when  war  exists,  and  the  arrest  and  detention  of 
even  innocent  persons  are  essential  to  the  success  of  mili- 
tary operations,  such  arrest  and  detention  are  lawful  and 
justifiable. 

Suppose  a  loyal  judge  holding  a  court  in  a  loyal  State, 
and  a  witness  on  the  stand  who  knows  the  details  of 
a  proposed  military  expedition  which  it  would  be  highly 
injurious  to  the  military  operations  of  the  army  or  navy  to 
have  disclosed  or  made  public,  would  any  one  doubt  the 
right  of  the  military  commander  to  stop  the  trial  on  the 
-instant,  and,  if  necessary,  to  imprison  the  judge  or  the 
witness,  to  prevent  betrayal  of  our  military  plans  and 
expeditions,  so  that  they  might  come  to  the  knowledge 
of  our  enemy  1 

The  innocence  of  the  person  who  may  through  igno- 
rance, or  weakness,  or  folly,  endanger  the  success  of 
military  expeditions,  does  not  deprive  the  military  com- 
mander of  the  power  to  guard  against  hazard  and  pre- 
vent mischief. 

The  true  principle  is  this  :  the  military  commander 
has  the  power,  in  time  of  war,  to  arrest  and  detain  all 
persons  who,  being  at  large  he  has  reasonable  cause 
to  believe  will  impede  or  endanger  the  military  opera- 
tions of  the  country. 


192  MILITARY    ARRESTS    IN    TIME    OF    WAR. 

The  true  fceal  of  liability  to  arrest  is,  therefore,  nol 
alone  the  guill  or  innocence  of  the  party;  nol  alone 
the  neighborhood  or  distance  from  the  places  where 
battles  are  impending;  do1  alone  whether  he  is  engaged 
in  active  hostilities  :  bul  whether  his  being  at  large  will 
actually  tend  to  impede,  embarrass,  or  hinder  the  bona 
fuk  military  operations  in  creating,  organizing,  maintain- 
ing, and  most  effectually  using  the  military  forces  of  the 
country. 

No  other  motive  or  object  for  making  military  arrests, 
excepl  for  military  crimes,  is  to  be  tolerated;  no  arrests, 
made  under  pretence  of  military  power  for  other  objects, 
a  n  •  lawful  or  j  ust  i  liable.  The  dividing  line  between  civil 
liberty  and  military  power  is  precisely  here  :  civil  liberty 
secures  the  right  to  freedom  from  arrests  except  by  civil 
sss  in  time  of  peace  ;  or  by  military  power  when  war 

sts,  and  the  exigencies  of  the  case  are  such  that  the 
arrest  is  required  in  order  to  prevent  embarrassment  or 
injury  to  the  bona  fide  military  operations  of  the  army 
or  navy. 

It  is  not  enough  to  justify  an  arrest  to  say  that  war 
exists,  or  that  it  is  a  time  of  war,  (unless  martial  law 
is  declared.)  Nor  is  it  necessary  to  justify  arrests  that 
•  hostilities  should  be  going  on  at  t\\o,  place  of  the 
arrest.  It  is,  however,  enough  to  justify  arrests  in  any 
locality,  however  far  removed  from  the  battle-fields  of 
contending  armies,  that  it  is  a  time  of  war,  and  the  arrest 
is  required  to  punish  a  military  crime,  to  prevent  an  act 
of  hostility,  or  even  to  avoid  the  danger  that  military 
operations  of  any  description  may  be  impeded,  embar- 
rased,  or  prevented. 

In  considering  the  subject  of  arrests,  it  must  be  borne 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  193 

in  mind  that  "  a  person  taken  and  held  by  the  military 
forces,  whether  before,  or  in,  or  after  a  battle,  or  without 
any  battle  at  all,  is  virtually  a  'prisoner  of  war.  No  mat- 
ter what  his  alleged  offence,  whether  he  is  a  rebel,  a 
traitor,  a  spy,  or  an  enemy  in  arms,  he  is  to  be  held  and 
punished  according  to  the  laws  of  war,  for  these  have 
been  substituted  for  the  laws  of  peace." 

CAUSE  OF  ARREST  CANNOT  BE  SAFELY  DISCLOSED. 

\ 

It  cannot  be  expected,  when  government  finds  it  ne- 
cessary to  make  arrests  for  causes  which  exist  during 
civil  war,  that  the  reasons  for  making  such  arrests  should 
be  at  once  made  public;  otherwise  the  purpose  for  which 
the  arrest  is  made  might  be  defeated.  Thus,  if  a  con- 
spiracy has  been  formed  to  commit  hostilities,  and  one 
conspirator  is  arrested,  publishing  the  facts  might  enable 
other  conspirators  to  escape,  and  take  advantage  of 
their  information.  It  may  be  necessary  to  make  arrests 
on  grounds  justifying  suspicion  of  hostile  intentions, 
when  it  might  be  an  act  of  injustice  to  the  party  sus- 
pected, if  innocent,  to  publish  the  facts  on  which  such 
suspicions  were  entertained;  and  if  guilty,  it  might  pre- 
vent the  government  from  obtaining  proof  against  him, 
or  preventing  the  hostile  act.  Under  these  circum- 
stances the  safety  of  civil  liberty  must  rest  in  the  hon- 
esty, integrity,  and  responsibility  of  those  who  have  been 
for  the  time  clothed  with  the  high  powers  of  adminis- 
tering the  government. 

ARRESTS    TO   PREVENT    HOSTILITIES. 

The  best  use  of  armies  and  of  navies  is  not  to  punish 

criminals  fin*  offences  against  laws,  but  to  prevent  public 

enemies   from    committing  future   hostilities.     Victory 
9.fi 


Mill  i  \l,V    AKKI  -is    IN    TIME    OF    WAR. 

and  conquest  are  do!  for  revenge  of  wrongs,  but  foi 
security  of  rights.  Arch  traitors  and  consummate  vil- 
lains are  qoI  those  on  whom  the  avenging  sword  is  most 
apt  to  fall,  bul  the  dupes  and  victims  oftheir  crimes  arc 
those  whooftenest  bear  the  sharp  catastrophy  of  battles. 

We  arresl  and  hold  an  enemy  not  to  punish,  but  to 
do  him  from  ads  of  hostility;  we  hang  a  spy  not 
only  to  deter  others  from  committing  a  similar  offence 
but  chiefly  to  prevent  his  betraying  us  to  the  enemy. 

•We  capture  and  destroy  the  property  even  of  friends, 
if  exposed  in  an  enemy's  country,  not  to  injure  those 
wlio  wish  us  well,  but  to  withdraw  their  property  from 
liability  to  be  used  by  our  opponents. 

In  a  defensive  civil  war,  many,  if  not  most,  military 
operations  have  for  their  legitimate  object  the  preven- 
tion of  hostility. 

In  case  of  foreign  war,  an  act  of  Congress  provides 
that  to  prevent  hostilities  by  aliens  they  may  be  arrested. 

In  case  of  "  Declared  war  between  the  United  States 
and  any  foreign  nation,  or  of  any  invasion  or  predatory 
incursion  being  attempted  or  threatened  against  any 
territory  of  the  United  States  by  any  foreign  gov- 
ernment, and  the  President  shall  make  public  procla- 
mation of  the  event,  all  natives,  citizens,  denizens,  or 
subjects  of  the  hostile  nation  or  government,  being  males 
of  the  ;;_r;'  of  fourteen  years  and  upwards,  who  shall  be 
within  the  United  States  and  not  actually  naturalized, 
shall  be  liable  to  be  apprehended,  restrained,  secured,  and 
removed  as  alien  enemies." 

"Power  over  this  subject  is  given  to  the  President, 
having  due  regard  to  treaty  stipulations  by  the  act  of 
the  Cth  of  July,  1 798;  and  by  this  act  the  President  was 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  195 

authorized  to  direct  the  confinement  of  aliens,  although 
such  confinement  was  not  for  the  purpose  of  removing 
them  from  the  United  States,  and  means  were  conferred 
on  him  to  enforce  his  orders,  and  it  was  not  necessary 
that  any  judicial  means  should  be  called  in  to  enforce 
the  regulations  of  the  President."* 

Thus  express  power  is  given  by  statute  to  the  Presi- 
dent to  make  military  arrests  of  innocent  foreign-born 
persons  under  the  circumstances  above  stated,  for  the 
purpose  of  preventing  them  from  taking  part  in  the 
contest. 

While  this  ample  authority  is  given  to  the  commander- 
in-chief  to  arrest  the  persons  of  aliens  residing  here,  as 
a  precautionary  measure,  a  far  greater  power  over  the 
persons  of  our  own  citizens  is,  for  the  same  reason,  given 
to  the  President  in  case  of  public  danger. 

RESTRAINT  OF  LIBERTY  BY    COMPULSORY   MILITARY    DUTY  EXCEEDS 
TEMPORARY  RESTRAINT  BY  ARREST. 

To  prevent  hostilities  in  case  of  threatened  danger,  the 
President  may  call  into  service  the  army  and  navy  of  the 
United  States  and  the  militia,  and  thereby  subject  vast 
numbers  of  citizens  to  military  duly  under  all  the  severity 
of  martial  law,  whereby  they  arc  required  to  act  under 
restraints  more  severe,  and  to  incur  dangers  more  formi- 
dable than  any  mere  arrest  and  detention  in  a  safe  place 
for  a  limited  time. 

The  law  of  Congress  (1795)  provides  that  the  army 
may  be  called  into  actual  service  not  only  in  cases  of 
actual  invasion,  but  when  there  is  danger  of  invasion. 
Such  is  the  power  of  the  President  under  the  Constitu- 

0 Louhington  vs.  Smith,  Petes  C.  C.  Rep.  466. 


196  MILITAIt*    AJRRESTS    l\    TIME    OF    WAR. 

tion,  as  interpreted  b}  the  Supreme  Court  of  the  United 
Stairs  in  the  case  of  Martin  t».Mott,  12  Wheaton  R.  28. 

The  President  of  the  United  States  is  the  sole  arbiter 
of  the  question  whether  such  danger  exists,  and  he  alone 
can  call  into  action  the  proper  force  to  meel  the  danger. 

//<  alone  is  the  judge  as  to  where  the  danger  is,  and 
he  has  a  right  to  place  his  troops  there,  in  whatever  Slate 
or  Territory  thai  danger  is  apprehended.  lie  may  issue 
orders  to  his  army  to  take  such  military  measures  -is 
may.  in  his  judgment,  be  necessary  for  public  safely; 
wlioi  her  these  measures  require  the  destruction  of  pub- 
lic or  private  property,  the  arrest  or  capture  of  persons, 
or  other  speedy  and  effectual  military  operations,  sanc- 
tioned by  the  laws  of  war. 

Such  are  1  he  principles  settled  in  Martin  vs.  Mott,*  and 
reaffirmed  in  Luther  vs.  Borden,f  where,  in  a  civil  war 
in  a  State,  the  apprehension  of  danger,  and  the  right  to 
use  military  power  to  prevent  it,  and  to  restrain  the 
public  enemy,  are  held  to  justify  the  violation  of  rights 
of  person  and  property,  invariably  held  sacred  and  in- 
violable in  time  of  peace. 

MILITARY  ARRESTS  MADE  RY  ALL  GOVERNMENTS  IN  CIVIL  WAR. 

Capture  of  prisoners,  seizures  of  property,  are,  all  over 
the  world,  among  the  familiar  proceedings  of  belligerents. 
No  existing  government  has  ever  hesitated,  while  civil 
war  was  raging,  to  make  military  arrests.  Nor  could 
warlike  operations  be  successfully  conducted  without  a 
frequent  use  of  the  power  to  take  and  restrain  hostile 
persons.     Such  is  the  lesson  taught  by  the  history  of 

-•  12  Wheat  n's  Reports,  page  28. 
f  8  Howard's  Reports,  page  1. 


MILITARY    ARRESTS    IX    TIME    OF    WAR.  197 

England  and  France.  While  the  laws  of  war  place  m 
the  hands  of  military  commanders  the  power  to  capture, 
arrest,  and  imprison  the  army  of  the  enemy,  it  would  be 
unreasonable  not  to  authorize  them  to  capture  a  hostile 
individual,  when  his  going  at  large  would  endanger  the 
success  of  military  operations.  To  carry  on  war  with 
no  right  to  seize  and  hold  prisoners  would  be  as  im- 
practicable as  to  carry  on  the  administration  of  criminal 
law  with  no  right  to  arrest  and  imprison  culprits. 

PECULIAR    NECESSITIES   OF    CIVIL    WAR. 

In  foreign  wars,  where  the  belligerents  are  separated 
by  territorial  boundaries,  or  by  difference  of  language, 
there  is  little  difficulty  in  distinguishing  friend  from  foe. 
But  in  civil  war,  those  who  are  now  antagonists  but  yes- 
terday walked  in  the  same  paths,  gathered  around  the 
same  fireside,  worshipped  at  the  same  altar;  there  is  no 
means  of  separating  friend  from  foe,  except  by  the  single 
test  of  loyalty,  or  hostility  to  the  government. 

MARKS   OF    HOSTILITY. 

It  is  a  sentiment  of  hostility  which  in  time  of  war 
seeks  to  overthrow  the  government,  to  cripple  its  powers 
of  self-defence,  to  destroy  or  depreciate  its  resources,  to 
undermine  confidence  in  its  capacity  or  its  integrity, 
to  diminish,  demoralize,  or  destroy  its  armies,  to  break 
down  confidence  in  those  who  are  intrusted  with  its 
military  operations  in  the  field. 

He  is  a  public  enemy  who  seeks  falsely  to  exalt 
the  motives,  character,  and  capacity  of  armed  traitors, 
to  magnify  their  resources,  to  encourage  their  efforts  by 
sowing  dissensions  at  home,  and  inviting  intervention  of 


1  Mill  r\:;\    LBEE8TS    in    I  imi:   OP    WAB. 

foreign  powers  in  our  affairs,  b\  overrating  the  success, 
increasing  the  confidence,  and  strengthening  the  hopes 
of  our  adversary,  and  by  underrating,  diminishing,  and 
weakening  our  own,  seeking  false  causes  of  complaint 
against  our  governmenl  and  its  officers,  sowing  seeds  of 
dissension  and  party  spiril  among  ourselves,  and  l>y  many 
other  ways  giving  aid  and  comforl  to  the  enemy — aid 
more  valuable  to  them  than  many  regiments  of  soldiers 
or  many  millions  of  dollars. 

All  these  ways  and  means  of  aiding  a  public  enemy 
oughl  lo  he  prevented  or  punished.  But  the  connex- 
ions between  citizens  residing  in  different  sections  of 
the  country  are  so  intimate,  the  divisions  of  opinion  on 
political  or  military  questions  are  so  numerous,  the  bal- 
ance of  affection,  of  interest,  and  of  loyalty  is  so  nice 
in  many  instances  that  civil  war,  like  that  which 
darkens  the  Tinted  States,  is  fraught  with  peculiar  dan- 
gers, requires  unusual  precautions,  and  warrants  and 
demands  the  most  thorough  and  unhesitating  measures 
for  preventing  acts  of  hostility,  and  for  the  security  of 
public  safety. 

WHO  OUGHT  AND  WHO  OUGHT  NOT  TO  BE  ARRESTED. 

All  persons  who  act  as  public  enemies,  and  all  who 
by  word  or  deed  give  reasonable  cause  to  believe  that 
they  intend  to  act  as  such,  may  lawfully  be  arrested  and 
detained  by  military  authority  for  the  purpose  of  pre- 
venting  the  consequences  of  their  acts. 

No  person  in  loyal  States  can  rightfully  be  captured  or 
detained  unless  he  has  engaged,  or  there  is  reasonable 
cause  to  believe  he  intends  to  engage,  in  acts  of  hostil- 
ity to  the  United  States — that  is  to  say,  in  acts  which 
may  tend  to  impede  or  embarrass  the  United  States  in 


MILITAEY    ARRESTS    IN    TIME    OF    WAR.  199 

sucli  military  proceedings  as  the  commander-in-chief 
may  see  fit  to  institute. 

INSTANCES   OF   ACTS   OF    HOSTILITY. 

Among  hostile  proceedings,  in  addition  to  those  already 
suggested,  and  which  justify  military  arrests,  may  be 
mentioned  contraband  trade  with  hostile  districts  or  com- 
mercial intercourse  with  them,  forbidden  by  statutes  or 
by  military  orders;*  aiding  the  enemy  by  furnishing 
them  with  information  which  may  be  useful  to  them; 
correspondence  with  foreign  authorities  with  a  view  to 
impede  or  unfavorably  affect  the  negotiations  or  interests 
of  the  government ;f  enticing  soldiers  or  sailors  to  deser- 
tion ;  prevention  of  enlistments ;  obstruction  to  officers 
whose  duty  it  is  to  ascertain  the  names  of  persons  liable 
to  do  military  duty,  and  to  enrol  them  ;  resistance  to  the 
draft,  to  the  organization  or  to  the  movements  of  soldiers ; 
aiding  or  assisting  persons  to  escape  from  their  military 
duty,  by  concealing  them  in  the  country  or  transporting 
them  away  from  it. 

NECESSITY   OF    POWER    TO    ARREST   THOSE    WHO    RESIST    DRAFT. 

The  creation  and  organization  of  an  army  are  the 
foundation  of  all  power  to  suppress  rebellion  or  repel 
invasion,  to  execute  the  laws,  and  to  support  the  Consti- 
tution, when  they  are  assailed. 

Without  the  power  to  capture  or  arrest  those  who  op- 
pose the  draft  no  army  can  be  raised.  The  necessity  of 
such  arrests  is  recognized  by  Congress  in  the  75th  chap- 
ter of  the  act  of  March  3, 18G3,  for  "-enrolling  the  forces  oj 
the  United  States,  and  for  other  purposes"  which  pro- 

P  See  acts  June  13,  1861;  May  20,  18C2,  and  March  12,  18G3. 
fSee  act  February  12,  18G.'J,  ch.  CO. 


200  MILITARY    AJRRESTS    l\    TIME    OF    WAR. 

vides  for  the  arrest  and  punishment  of  those  who  oppose 
the  draft.  This  provision  is  an  essential  pari  ofthegen- 
eral  system  for  raising  an  army  embodied  in  thai  statute. 

Those  citizens  who  are  secretly  hostile  1o  the  Union 
may  attempt  to  prevent  the  hoard  of  enrolment  from 
proceeding  with  the  draft,  or  may  refuse,  when  drafted, 
to  enter  the  service. 

Military  power  is  called  on  to  aid  the  proceedings  by 
which  the  army  is  created.  If  the  judiciary  only  is  relied 
on,  then  raising  the  army  must  depend  at  last  on  the 
physical  force  which  the  judiciary  can  bring  forward  to 
enforce  its  mandates;  and  so,  if  the  jMsaewnitat us  is  not 
able  to  overpower  those  opposed  to  draft,  the  draft  can- 
nut  lie  made  according  to  law.  If  the  draft  is  generally 
resisted  in  any  locality,  as  it  may  be,  no  draft  can  be  made, 
no  law  enforced,  except  mob  law  and  lynch  law,  unless 
military  power  is  lawfully  applied  to  arrest  the  criminals. 

If  the  power  to  raise  an  army  be  denied,  the  govern- 
ment will  be  broken  down;  and  because  we  are  too 
anxious  to  secure  the  supposed  rights  of  certain  indi- 
viduals, all  our  rights  will  be  trampled  under  foot. 

TERRITORIAL  EXTENT  OF  MARTIAL  AND  MILITARY  LAW. 

It  is  said  that  martial  law  must  be  confined  to  the 
immediate  field  of  action  of  the  contending  armies,  while 
in  other  and  remote  districts  the  martial  law  is  not  in 
force.     Let  us  see  the  difficulty  of  this  view. 

Is  martial  law  to  be  enforced  only  where  the  move- 
ments of  our  enemy  may  carry  it? 

Do  we  lose  our  military  control  of  a  district  when  the 
enemy  have  passed  through  and  beyond  it  ? 

[a  there  no  martial  law  between  the  base  of  opera- 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  201 

tions  of  our  army  and  the  enemy's  lines,  even  though  it 
be  a  thousand  miles  from  one  to  the  other? 

Must  there  be  two  armies  close  to  each  other  to  in- 
troduce martial  law? 

Is  it  not  enough  that  there  is  one  army  in  a  locality 
to  enforce  the  law  ? 

If  a  regiment  is  encamped,  is  there  not  within  its  lines 
martial  law  ? 

If  a  single  file  of  soldiers  is  present  under  a  com- 
manding officer,  is  it  not  the  same  ? 

Where  must  the  enemy  be  to  authorize  martial  law  1 

Suppose  the  enemy  is  an  army,  a  regiment,  or  a  single 
man;  yet,  be  the  number  of  persons  more  or  less,  it 
is  still  the  enemy. 

Who  is  the  enemy  ?     Whoever  makes  war. 

Who  makes  war  ?  Whoever  aids  and  comforts  the 
enemy.     He  commits  treason.     He  makes  war. 

A  raid  into  a  northern  State  with  arms  is  no  more  an 
act  of  hostility  than  a  conspiracy  to  aid  the  enemy  in  the 
northern  States  by  northern  men. 

All  drafts  of  soldiers  are  made  in  places  remote  from 
the  field  of  conflict.  If  no  arrest  can  be  made  there, 
then  the  formation  of  the  army  can  be  prevented. 

Can  a  spy  be  arrested  by  martial  law  ?  Formerly 
there  was  no  law  of  the  United  States  against  spies 
outside  of  camps.  There  was  nothing  but  martial  law 
against  them.  A  spy  from  the  rebel  army  no  one 
could  doubt  should  be  arrested.  Why  should  not  a  spy 
from  the  northern  States  be  arrested  ? 

Thus  it  is  obvious  that  the  President,  if  deprived  of 
the  power  to  seize  or  capture  the  enemy,  wherever  they 
may  be  found,  whether  remote  from  the  field  of  hostil- 
2G 


202  Miiir\!:v     LRRESTS    in    TIME    OF    WAR. 

ities  or  Dear  fco  it,  cannot  effectually  suppress  the  rebel- 
lion. 

Where  is  the  limit   to  which  the  military  power  of  the 

commander  of  the  army  musl  be  confined  in  making  war 
againsl  the  enemy?  Wherever  military  operations  are 
actually  extended,  there  is  martial  law. 

Win -ne  vera  person  is  helping  the  enemy,  then  he  may 
betaken  as  an  enemy:  whenever  a  capture  is  made, 
then'  war  is  going  on,  there  martial  law  is  inaugurated, 
so  far  as  thai  capture  is  concerned. 

Stonewall  Jackson,  it  is  said,  visited  Baltimore  a  few 
months  since  in  disguise.  While  there, it  is  not  known 
thai  he  committed  any  breach  of  the  laws  of  Maryland 
orof  the  United  States.  Could  he  not  have  been  cap- 
tured, if  he  had  been  caught,  by  the  order  of  the  Pres- 
ident I  If  captured,  could  the  State  court  of  Maryland 
have  ordered  him  to  be  surrendered  to  its  judge,  and  so 
turned  loose  again  1 

HABEAS    CORPUS. 

The  military  or  executive  power  to  prevent  prisoners 
of  war  from  being  subject  to  discharge  by  civil  tribu- 
nals, or,  in  other  words,  the  power  to  suspend  as  to 
these  prisoners  the  privilege  of  habeas  corpus,  is  an  essen- 
tial means  of  suppressing  the  rebellion  and  providing  for 
the  public  safety,  and f  is  therefore,  by  necessary  impli- 
cation, conferred  by  the  Constitution  on  that  department 
of  government  to  which  belongs  the  duty  of  suppressing 
rebellion  by  force  of  arms  in  time  of  war.  In  times  of 
civil  war  or  rebellion  it  is  the  duty  of  the  President  to 
call  out  the  army  and  navy  to  suppress  it.  To  use  the 
army  effectually  for  that  purpose  it  is  essential  that  the 
commanders  should  have  the  power  of  retaining  in  their 
control  all  persons  captured  and  held  in  prison. 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  203 

It  must  be  presumed  that  the  powers  necessary  to 
execute  the  duties  of  the  President  are  conferred  on 
him  by  the  Constitution.  Hence  he  must  have  the 
power  to  hold  whatever  persons  he  has  a  right  to  cap- 
ture without  interference  of  courts  during  the  war,  and 
he  has  the  right  to  capture  all  persons  who  he  has  rea- 
sonable cause  to  believe  are  hostile  to  the  Union,  and 
are  engaged  in  hostile  acts.  The  power  is  to  be  exer- 
cised in  emergencies.  It  is  to  be  used  suddenly.  The 
facts  on  which  public  safety  in  time  of  civil  war  depends 
can  be  known  only  to  the  military  men,  and  not  to 
the  legislatures  in  any  special  case.  To  pass  a  law  as 
to  each  prisoner's  case,  whenever  public  safety  required 
the  privilege  of  the  writ  to  be  suspended,  would  be 
impracticable. 

Shall  there  be  no  power  to  suspend  the  writ  as  to 
any  single  person  in  all  the  northern  States  unless  Con- 
gress pass  a  law  depriving  all  persons  of  that  privilege  1 

Oftentimes  the  exposure  of  the  facts  and  circum- 
stances requiring  the  suspension  in  one  case  would  be 
injurious  to  the  public  service  by  betraying  our  secrets 
to  the  enemy.  Few  acts  of  hostility  are  more  dangerous 
to  public  safety,  none  require  a  more  severe  treatment, 
either  to  prevent  or  to  punish  than  an  attempt  to  in- 
terfere with  the  formation  of  the  army  by  preventing 
enlistments,  by  procuring  desertions,  or  by  aiding  and 
assisting  persons  liable  to  do  military  duty  in  escaping 
from  the  performance  of  it.  Military  arrest  and  con- 
finement in  prison  during  the  war  are  but  a  light  punish- 
ment for  a  crime  which,  if  successful,  would  place  the 
country  in  the  power  of  its  enemies,  and  sacrifice  the 
lives  of  soldiers  now  in  the  field  for  want  of  support. 


•Jul  MILITARY    /LRRESTS    1\    TIME    OF    WAR. 

Whoever    breaks   up   the   fountain   head   of  the  army 
strikes  al  the  heari  of  t he  count ry. 

All  those  proceedings  which  tend  to  break  down  the 
army  when  in  the  field,  or  to  proven)  or  impede  any 
step  necessary  to  l>o  taken  to  colled  and  organize  it,  are 
acts  of  hostility  to  the  country,  and  lend  directly  1<>  im- 
pede the  military  operations  on  which  the  preservation 
of  the  governmenl  now  in  time  of  war  depends.  All 
persons  who  commit  such  acts  of  hostility  are  liable  to 
military  arrest  and  detention;  and  if  they  are  at  the. 
same  time  liable  to  be  proceeded  againsl  for  violation  of 
municipal  laws,  that  liability  cannot  shelter  them  from 
responsibility  to  he  treated  as  public  enemies  arrested 
and  detained  so  as  to  prevent  them  from  perpetrating 
any  act  of  hostility. 

In  determining  the  character  of  acts  in  the  free 
States  committed  by  persons  known  to  be  opposed  to 
the  war,  it  must  be  borne  in  mind  that  those  who  in  the 
loyal  States  aid  and  comfort  the  enemy  are  partakers  in 
the  crime  of  rebellion  as  essentially  as  if  present  with 
rebel  armies.  They  arc  in  law  participes  crimitiix. 
Though  their  overt  acts,  taken  alone  and  without  con- 
nection with  the  rebellion  might  not  amount  to  treason, 
or  to  ;my  crime,  yet  under  the  circumstances,  many  of 
these  acts,  otherwise  innocent,  become  dangerous,  inju- 
rious and  criminal. 

A  person  who  by  his  mere  presence  lends  support  and 
gives  confidence  to  a  murderer  while  perpetrating  his 
foul  crime,  is  sharer  in  that  crime,  whether  lie  is  at  the 
time  of  the  murder  in  actual  presence  of  his  victim,  or 
stands  oil'  at  a  distance,  and  is  ready  to  warn  the  cut- 
throat of  the  approach  of  danger.  Such  was  the  rule 
administered  in  the  trial  of  Knapp  for  murdering  a  citi- 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  205 

zen  of  Massachusetts.  This  is  familiar  law.  What 
difference  docs  it  make  whether  the. conspirator  is  near 
or  far  away  from  his  associates ;  whether  he  is  in  a 
slave  or  a  free  State  1  The  real  question  is  whether 
the  person  accused  has  given  or  means  to  give  aid 
or  comfort  to  the  enemy  of  his  country,  whether  near 
by  or  far  off;  if  so,  then  he  is  an  enemy,  and  may  be 
captured  on  the  door  steps  of  a  court-house,  or  even  on 
the  bench  itself. 

CONSTITUTIONALITY  OF  THE  ENROLMENT  ACT  OF  MARCH  3,  1863 

No  power  to  arrest  or  detain  prisoners  can  be  con- 
ferred upon  the  President  or  his  provost  marshals  by 
an  act  of  Congress  which  is  void  for  being  unconstitu- 
tional. No  person  can  be  civilly  or  criminally  liable  to 
imprisonment  for  violation  of  a  void  statute.  Hence  the 
cmestion  may  arise  whether  the  enrolment  act  is  a  le- 
gitimate exercise  by  Congress  of  powers  conferred  upon 
it  by  the  Constitution. 

That  Congress  has  full  power  to  pass  the  enrolment 
act  is  beyond  reasonable  doubt,  as  will  be  apparent  from 
the  following  references:* 

The  Constitution,  article  1,  section  8,  clause  12,  gives 
to  Congress  the  power  "to  raise  and  support  armies.'' 

It  must  be  observed  that  the  Constitution  recognizes 
a  clear  distinction  between  the  "army  of  the  United 
States"  and  the  "militia"  of  the  several  States,  even 
when  called  into  actual  service.  Thus,  by  article  2, 
section  2,  clause  1,  "The  President  shall  be  commander- 
in-chief  of  the  army  and  navy  of  the  United  States,  and 
of  the  militia  of  the  several  States,  when  called  into  ac- 
tual service  of  the  United  States." 

By  article  1,  section  8»  clause    15,  "Congress  shall 

•  So  decided  in  several  cases,  since  tV   puhlica  Sirs l  edition, 


MILITARY     AURESTS    IN    TIME    OF    WAR 

power  to  provide  for  calling  forth  the  militia  toex- 

r  -utc  the  laws  of  the  Quion,  suppress  insurrections,  and 

repel  invasions." 

By  article  1.  Bection  8,  clause  L6,  Congress  shall  have 
power  "to  provide  for  organizing,  arming,  and  disci- 
plining the  militia,  and  for  governing  such  pari  of  them 
as  may  be  employed  in  the  service  of  the  United  Stales, 
reserving  to  the  Stales  respectively  the  appointment  of 
-dicers,  and  the  authority  of  training  the  militia  ac- 
cording to  the  discipline  prescribed  by  Congress." 

In  addition  to  these  powers  of  Congress  to  call  into 
the  service  of  the  Union  the  militia  of  the  States  by  re- 
quisitions noon  the  respective  governors  thereof,  the 
Constitution  confers  upon  Congress  another  distinct,  in- 
dependenl  power,  by  article  1,  section  8,  clause  1*2,  which 
provides  "That  Congress  shall  have  power  to  raise  and 
support  armies;  hut  no  appropriation  for  that  use  shall 
he  for  a  longer  term  than  two  years." 

By  article  1,  section  8,  clause  14,  Congress  shall  have 
j tower  to  make  rules  for  the  government  and  regula- 
tion of  the  land  and  naval  forces. 

The  statutes  of  17'  5,  and  other  recent  acts  of  1861 
and  18G2,  authorizing  the  enlistment  of  volunteers,  were 
mainly  founded  on  the  power  to  receive  militia  of  the 
Stales  into  the  service  of  the  Union,  and  troops  were 
raised  principally  through  the  agency  of  governors  of 
States. 

But  the  enrolment  act  of  1863  is  an  exercise  of  power 
conferred  upon  Congress,  to  "  raise  and  support  armies/' 
and  not  of  the  power  to  call  out  the  militia  of  the  States. 
Neither  the  governors  nor  other  State  authorities  have 
any  official  functions  to  perform  in  relation  to  this  act, 
nor  any   right  to   interfere   with  it.     It  is  an  act  of  the 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  207 

United  States,  to  be  administered  by  United  States  offi- 
cers, applicable  to  citizens  of  the  United  States  in  the 
same  way  as  all  other  national  laws. 

The  confounding  of  these  separate  powers  of  Congress 
and  the  rights  and  proceedings  derived  from  them  has 
been  a  prolific  source  of  error  and  misapprehension. 

Article  1,  section  8,  clause  13,  gives  Congress  power 
''  to  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces." 

Article  1,  section  8,  clause  18,  gives  Congress  power 
"  to  pass  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  effect  the  foregoing  powers  and  all 
other  powers  vested  by  this  Constitution  in  the  govern- 
ment or  in  any  department  or  officer  thereof ;" 

RULES  OF  INTERPRETATION  AND    THEIR  APPLICATION  TO  THIS    ACT. 

The  Constitution  provides  that  Congress  shall  have 
power  to  pass  "  all  laws  necessary  and  proper"  for  car- 
rying into  execution  all  the  powers  granted  to  the  gov- 
ernment of  the  United  States,  or  any  department  or 
officer  thereof.  The  word  "  necessary,"  as  used,  is  not 
limited  by  the  additional  word  "  proper,"  but  enlarged 
thareby. 

"If  the  word  necessary  were  used  in  the  strict,  rigorous  sense,  it 
would  be  an  extraordinary  departure  from  the  usual  course  of  the 
human  mind,  as  exhibited  in  solemn  instruments,  to  add  another  word, 
the  only  possible  effect  of  which  is  to  qualify  that  strict  and  rigorous 
meaning,  and  to  present  clearly  the  idea  of  a  choice  of  means  in  the 
course  of  legislation.  If  no  means  are  to  be  resorted  to  but  such  as 
are  indispensably  necessary,  there  can  be  neither  sense  nor  utility 
in  adding  the  word  'jjroper,'  for  the  indispensable  necessity  would 
shut  out  from  view  all  consideration  of  the  propriety  of  the  means." 

Alexander  Hamilton  says — 

*'  The  authorities  essential  to  the  care  of  the  common  defence  are 
these :  To  raise  armies ;  to  build  and  equip  fleets  ;  to  prescribe  rules 


KILITAB1     aBRESTS    IN    TIME    OF    WAR 

for  the  governmcnl  of  both;  to  direct  their  operations  ;  to  provide  for 
their  support  These.powere  oughl  to  exist  without  limitation 
because  it  is  impossible  to  foresee  or  to  define  the  extent  and  variety 
of  national  exigencies,  and  the  correspondent  extent  and  variety  pf 

t  ho  means  necessary  to  sati.-fv  I  In  in.  The  circumstances  which  en- 
danger the  safety  of  nations  are  infinite,  and  for  this  reason  no  con- 
stitutional shackles  can  wisely  be  imposed  on  the  powerto  which  the 
care  of  it  iscommitted.  *  *  *  This  power  ought  to  be  under  the 
direction  of  the  same  councils  which  are  appointed  to  preside  over  the 
common  defence.  *  *  *  It  must  he  admitted,  as  a  necessary 
consequence,  that  there  can  be  no  limitation  of  that  authority  which 
is  to  provide  for  the  defence  and  protection  of  the  community  in  any 
matter  essential  to  its  efficacy — that  is,  in  any  matter  essential  to  the 
format  ion,  direction,  or  support  of  the  XATIOXAL  FORCES." 

This  statement,  Hamilton  says — 

"  Rests  upon  two  axioms,  simple  as  they  arc  universal :  the  means 
ought  to  be  proportioned  to  the  end  ;  the  persons  from  whose  agency 
the  attainment  of  the  end  is  expected  ought  to  possess  the  means  by 
which  it  is  to  be  attained." 

The  doctrine  of  the  Supreme  Court  of  the  United 
States,  announced  by  Chief  Justice  Marshall,  and  ap- 
proved by  Daniel  Webster,  Chancellor  Kent,  and  Judge 
Story,  is  thus  stated  : 

•The  government  of  the  United  States  is  one  of  enumerated  pow- 
.  and  it  can  exercise  only  the  powers  granted  to  it  ;  but  though 
limited  in  its  powers,  it  is  supreme  within  its  sphere  of  action.  It  is 
the  government  of  the  people  of  the  United  States,  and  emanated 
from  them.  Its  powers  were  delegated  by  all,  and  it  represents  all, 
and  acts  for  all. 

"  There  is  nothing  in  the  Constitution  which  excludes  incidental  or 
implied  powers.  The  articles  of  confederation  gave  nothing  to  the 
United  States  but  what  was  expressly  granted  ;  but  the  new  Consti- 
tution dropped  the  word  expressly,  and  left  the  question  whether  a 
particular  power  was  granted  to  depend  on  a  fair  construction  of  the 
whole  instrument.  No  constitution  can  contain  an  accurate  detail  of 
all  the  subdivisions  of  its  powers,  and  all  the  means  by  which  they 
might  be  carried  into  execution.  It  would  render  it  too  prolix.  Its 
nature  requires  that  only  the  great  outlines  should  he  marked,  and  its 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  209 

important  objects  designated,  and  all  the  minor  ingredients  left  to  be 
deduced  from  the  nature  of  those  objects.  The  sword  and  the  purse 
all  the  external  relations,  and  no  inconsiderable  portion  of  the  indus- 
try of  the  nation,  were  intrusted  to  the  general  government ;  and  a 
government  intrusted  with  such  ample  powers,  on  the  due  execution 
of  which  the  happiness  and  prosperity  of  the  people  vitally  depended, 
must  also  be  intrusted  with  ample  means  of  their  execution.  Unless 
the  words  imperiously  require  it,  we  ought  not  to  adopt  a  construc- 
tion which  would  impute  to  the  framers  of  the  Constitution,  when 
granting  great  powers  for  the  public  good,  the  intention  of  impeding 
their  exercise  by  withholding  a  choice  of  means.  The  powers  given 
to  the  government  imply  the  ordinary  means  of  execution;  and  the 
government,  in  all  sound  reason  and  fair  interpretation,  must  have  the 
choice  of  the  means  which  it  deems  the  most  convenient  and  appro- 
priate to  the  execution  of  the  power.  The  Constitution  has  not  left 
the  right  of  Congress  to  employ  the  necessary  means  for  the  execu- 
tion of  its  powers  to  general  reasoning.  Art.  1,  sect.  8,  of  the  Con- 
stitution expressly  confers  on  Congress  the  power  'to  make  all  laws 
that  may  be  necessary  and  proper  to  carry  into  execution  the  forego- 
ing powers. 

".Congress  may  employ  such  means  and  pass  such  laws  as  it  may 
deem  necessary  to  carry  into  execution  great  powers  granted  by  the 
Constitution ;  and  necessary  means,  in  the  sense  of  the  Constitution, 
does  not  import  an  absolute  physical  necessity  so  strong  that  one 
thing  cannot  exist  without  the  other.  It  stands  for  any  means  cal- 
culated to  produce  the  end.  The  word  necessary  admits  of  all  de- 
grees of  comparison.  A  thing  may  be  necessary,  or  very  necessary. 
or  absolutely  or  indispensably  necessary.  The  word  is  used  in  various 
senses,  and  in  its  construction  the  subject,  the  context,  the  intention, 
are  all  to  be  taken  into  view.  The  powers  of  the  government  were 
given  for  the  welfare  of  the  nation.  They  were  intended  to  endure 
ji  for  ages  to  come,  and  to  be  adapted  to  the  various  crises  in  human 
affairs.  To  prescribe  the  specific  means  by  which  government 
should  in  all  future  time  execute  its  power,  and  to  confine  the  choice 
of  means  to  such  narrow  limits  as  should  not  have  it  in  the  power  of 
Congress  to  adopt  any  which  might  be  appropriate  and  conducive  to 
the  end,  would  be  most  unwise  and  pernicious,  because  it  would  be 
an  attempt  to  provide,  by  immutable  rules,  for  exigencies  which,  if 
foreseen  at  all,  must  have;  been  foreseen  dimly,  and  would  deprive 
the  legislature  of  the  capacity  to  avail  itself  of  experience,  or  to  ex- 

27 


210  Mill  i  \ K ^     AJEREST8    IN     riME    OF    WAR. 

excise  its  reason,  and  accommodate  its  legislation  to  circumstances, 
[f  the  end  be  legitimate,  and  within  the  Bcope  of  the  ( ''institution,  all 
means  which  are  appropriate,  and  plainly  adapted  to  this  end,  and 
which  aif  not  prohibited  by  the  Constitution,  arc  lawful."* 

Under  the  power  of  Congress  to  pass  all  laws  neces- 
sary and  proper  to  raise  and  supporl  armies  the  only 
question  is,  whether  the  act  of  Congress  is  "plainly 

adapted  to  the  end  proposed,"  namely,  "to  raise  an 
army."  If  it  is  a  usual  mode  of  raising  an  army  to  enrol 
and  draft  citizens,  or,  if  unusual,  it  is  one  appropriate 
mode  by  which  the  end  may  be  accomplished,  it  is 
within  the  power  of  Congress  to  pass  the  law.  Con- 
gress, having  the  power  to  raise  an  army,  has  an  un- 
limited choice  of  "means"  appropriate  for  carrying  that 
power  into  execution. 

In  a  republic,  the  country  has  a  right  to  the  military 
service  of  every  citizen  and  subject.  The  government 
is  a  government  of  tho  people,  and  for  the  safety  of  the 
people.  No  man  who  enjoys  its  protection  can  lawfully 
escape  his  share  of  public  burdens  and  duties.  Public 
safety  and  welfare  in  time  of  war  depend  wholly  upon 
the  success  of  military  operations.  Whatever  stands  in 
the  way  of  military  success  must  be  sacrificed,  else  all 
is  lost.  The  triumph  of  arms  is  the  tabula  in  naufra- 
gio,  the  last  plank  in  the  shipwreck,  on  which  alone  our 
chance  of  national  life  depends.  Hence,  in  the  struggle 
ot  a  great  people  for  existence,  private  rights,  though  not 
to  be  disregarded,  become  comparatively  insignificant, 
and  are  held  subject  to  the  paramount  rights  of  the  com- 
munity. The  life  of  the  nation  must  be  preserved  at 
all  hazards,  and  the  Constitution  must  not,  without  im- 

°0n  the  int.-rpretation  of  constitutional  power,  see  1  Kent'sCom.,  351,  352, 
McCuUcch  v.  'Ihe  Slate  of  Maryland,  4  Wheat.  R  ,  413—420. 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  211 

perative  necessity,  be  so  construed  as  to  deprive  the 
people  of  the  amplest  means  of  self-defence. 

Every  attempt  to  fetter  the  power  of  Congress  in 
calling  into  the  field  the  military  forces  of  the  country 
in  time  of  war  is  only  a  denial  of  the  people's  right  to 
fight  in  their  own  defence. 

If  a  foreign  enemy  were  now  to  invade  the  country, 
who  would  dare  to  cavil  at  the  forms  of  statutes  where- 
by the  people  sought  to  organize  the  army  to  repel  the 
invader?  It  must  not  be  forgotten  that  Congress  has 
the  same  power  to-day  to  raise  and  organize  armies  to 
suppress  rebellion  that  would  belong  to  it  if  the  Union 
were  called  upon  to  meet  the  world  in  arms. 

INDEMNITY  TO  PERSONS  ARRESTED. 

Persons  who  reside  in  a  country  engaged  in  active 
hostilities,  and  who  so  conduct  themselves  as  to  give 
reasonable  cause  to  believe  that  they  are  aiding  and  com- 
forting a  public  enemy,  or  that  they  are  participating  in 
any  of  those  proceedings  which  tend  to  embarrass  mili- 
tary operations,  may  be  arrested ;  and  if  such  persons 
shall  be  arrested  and  imprisoned  for  the  purpose  of  pun- 
ishing or  preventing  such  acts  of  hostility,  they  are  not 
entitled  to  claim  indemnity  for  the  injury  to  themselves 
or  to  their  property,  suffered  by  reason  of  such  arrest 
and  imprisonment. 

If  the  persons  so  arrested  be  subjects  of  a  foreign 
government,  they  cannot  lawfully  claim  indemnity,  be- 
cause their  own  hostile  conduct,  while  it  has  deprived 
them  of  the  shelter  of  "  neutrality,"  has  subjected  them 
to  penalties  for  having  violated  the  laws  of  war. 

If  a  foreigner  join  the  rebels,  he  exposes  himself  to 
the  treatment  of  rebels,  lie  can  claim  of  this  govern- 
ment no  indemnity  for  wounds  received  in  battle,  or  for 


212  MIi.nvKY    ARRESTS    in     iimi     OF    WAR. 

loss  of  time  or  Buffering  l>\  being  captured  and  im- 
prisoned. Lt  can  make  ao  difference  whether  his  acts 
of  hostility  to  the  United  States  are  committed  in  open 
contest  under  a  rebel  flag;  or  iii  the  Loyal  States,  where  his 
enmity  is  mosl  dangerous.  It' it  be  said  thai  he  lias  vio- 
lated no  municipal  law,  and  therefore  oughl  not  tobede- 
prived  of  liberty  without  indemnity,  it  must  be  remem- 
bered that  it*  he  has  violated  any  of  the  laws  of  war  he 
may  have  thereby  committed  an  ollencemore  dangerous 
to  the  country  and  more  destructive  in  its  consequences 
than  any  crime  defined  in  statutes. 

It'  a  person,  detained  in  custody  in  consequence  of 
having  violated  the  laws  of  war  and  for  the  purpose  of 
;  n  n  nting  hostilities,  be  liberated  from  confinement 
without  having  been  indictedby  a  grand  jury,  it  docs  not 
follow  1  herefrom  that  he  has  committed  no  crime.  He 
may  have  been  guilty  of  grave  offences,  while  the  govern- 
ment may  not  have  deemed  it  necessary  to  prosecute 
him.  Clemency  and  forbearance  are  not  a  just  founda- 
tion for  a  claim  of  indemnity.  An  offender  may  not 
have  been  indicted,  because  the  crime  committed,  being 
purely  a  military  crime,  or  crime  against  martial  law;  may 
not  have  come  within  the  jurisdiction  of  civil  tribunals. 

In  such  a  ease  the  arrest  and  imprisonment,  founded 
on  martial  law,  justified  by  military  necessity,  cannot  be 
adjudicated  by  civil  tribunals. 

If  the  person  so  arrested  is  the  subject  of  a  foreign 
power,  and  claims  exemption  from  arrest  and  custody 
tor  that  reason,  he  can  have  no  right  to  indemnity  under 
any  circumstances,  by  reason  of  being  an  alien,  until 
such  fact  of  alienage  is  made  known  to  the  government. 
His  claim  to  indemnity  thereafter  will  depend  on  a  just 
application  of  the  principles  already  stated. 


MILITARY    ARRESTS    IN    TIME    OF    WAR.  213 


APPENDIX 


Instructions  of  the  War  Department  to  Officers  ha  vino 
Charge  of  Deserters. 

WAR  DEPARTMENT, 
Provost  Marshal  General's  Office, 

Washington,  D.  C,  July  1,  1863. 

[Circular  No.  36.] 

The  following  opinion  of  Hon.  William  Whiting,  Solicitor  of  the 
War  Department,  is  published  for  the  information  and  guidance  of 
all  officers  of  this  Bureau: 

ARREST  OF  DESERTERS — HABEAS  CORPUS. 
i 

Opinion. 

It  is  enacted  in  the  7th  section  of  the  act  approved  March  3,  1863, 
entitled  "  An  act  for  enrolling  and  calling  out  the  national  forces,  and 
for  other  purposes,"  that  it  shall  be  the  duty  of  the  Provost  Marshals 
appointed  under  this  act  "•to  arrest  all  deserters,  whether  regulars, 
volunteers,  militia  men,  or  persons  called  into  the  service  under  this 
or  any  other  act  of  Congress,  wherever  they  may  be  found,  and  to 
send  them  to  the  nearest'military  commander,  or  military  post." 

If  a  writ  of  habeas  corpus  shall  be  issued  by  a  State  court,  and 
served  upon  the  Provost  Marshal  while  he  holds  under  arrest  a 
deserter,  before  he  has  had  opportunity  "to  send  him  to  the  nearest 
military  commander,  or  military  post,"  the  Provost  Marshal  is  not 
at  liberty  to  disregard  that  process.  "It  is  the  duty  of  the  Marshal, 
or  other  person  having  custody  of  the  prisoner,  to  make  known  to 
the  judge  or  court,  by  a  proper  return,  the  authority  by  which  he 
holds  him  in  custody.  But  after  this  return  is  made,  and  the  State 
judge  or  court  judicially  apprised  that  the  party  is  in  custody  under 
the  authority  of  the  United  States,  they  can  proceed  no  further. 

"  They  then  know  that  the  prisoner  is  within  the  dominion  and 
jurisdiction  of  another  government,  and  that  neither  the  writ  of  habeas 
corpus,  nor  any  other  process  issued  under  State  authority,  can  pass 


214  MILITARY     &BRESTS    l\     II M 1 ;    OF     WAR. 

over  the  line  of  division  between  the  two  sovereignties.  He  is  then 
within  the  dominion  and  exclusive  jurisdiction  of  the  United  States. 
It  he  has  committed  an  offence  against  their  laws,  their  tribunals 
alone  can  punish  him.  [fhe  is  wrongfully  imprisoned,  their  judicial 
tribunals  can  release  him  and  afford  him  redress.  Ami  although. as 
we  have  said,  it  is  the  duty  of  the  Marshal,  or  other  person  holding 
liiin.  to  make  known,  by  a  proper  return,  the  authority  under  which 
he  retains  him,  it  is,  at  the  .-ante  time,  imperatively  his  duty  to  obey 
the  process  of  the  United  States,  to  hold  the  prisoner  in  custody  un- 
der it.  and  to  refuse  obedience  to  the  mandate  or  process  of  any  other 
government.  Ami,  consequently,  it  is  his  duty  not  to  take  the 
prisoner,  nor  suffer  him  to  be  taken,  before  a  State  judge  or  court, 
upon  a  habeas  corpus  issued  under  State  authority.  No  State  judge 
or  court,  after  they  are  judicially  informed  that  the  party  is  im- 
prisoned  under  the  authority  of  the  United  States,  has  any  right  to 
interfere  with  him,  or  require  him  to  be  brought  before  them.  And 
if  the  authority  of  a  State,  in  the  form  of  judicial  process  or  other- 
wise, should  attempt  to  control  the  Marshal,  or  other  authorized 
officer  or  agent  of  the  United  States,  in  any  respect,  in  the  custody 
of  hi-  prisoner,  it  would  be  his  duty  to  resist  it,  and  to  call  to  his 
aid  any  force  that  might  be  necessary  to  maintain  the  authority  of 
law  against  illegal  interference.  '  Xo  judicial  process,  whatever  form 
it  may  assume,  can  have  any  lawful  authority  outside  the  limits  of 
the  jurisdiction  of  the  court  or  judge  by  whom  it  is  issued ;  and  an 
attempt  to  enforce  it  beyond  these  boundaries  is  nothing  less  than 
lawless  violence.'" 

'I'h  language  above  cited  is  that  of  Chief  Justice  Taney  in  the 
in  of  the  Supreme  Court  of  the  United  States  in  the  case  of 
Ablen  an    vs.  Booth. — (21  Howard's  Reports,  506.) 

It'  a  writ  of  habeas  corpus  shall  have  been  sued  out  from  a  State- 
court,  and  served  upon  the  Provost  Marshal  while  he  holds  the 
deserter  under  arrest,  and  before  he  has  had  time  or  opportunity  to 
"send  him  to  the  nearesl  military  commander,  or  military  post," 
it  Is  the  duty  of  the  Marshal  to  make  to  the  court  a  respectful  state- 
ment, in  writing,  as  a  return  upon  the  writ,  setting  forth  : 

1st.  That  the  respondent  is  Provost  Marshal,  duly  appointed  by 
the  Presidenl  of  the  United  States,  in  accordance  with  the  provisions 
of  the  act  aforesaid. 

2d.   That  the   person  held  was  arrested  by  said  Marshal  as  a 


MILITARY    AERESTS    IN    TIME    OF    WAR,  215 

deserter,  in  accordance  with  the  provision  of  the  7th  section  of  the 
act  aforesaid.  That  it  is  the  legal  duty  of  the  respondent  to  deliver 
over  said  deserter  "  to  the  nearest  military  commander,  or  military 
post,"  and  that  the  respondent  intends  to  perform  such  duty  as  soon 
as  possible. 

3d.  That  the  production  of  said  deserter  in  court  would  be  incon- 
sistent with,  and  in  violation  of  the  duty  of  the  respondent  as  Provost 
Marshal,  and  that  the  said  deserter  is  now  held  under  authority  of 
the  United  States.  For  these  reasons,  and  without  intending  any 
disrespect  to  the  honorable  judge  who  issued  process,  he  declines  to 
produce  said  deserter,  or  to  subject  him  to  the  process  of  the  court. 

To  the  foregoing  all  other  material  facts  may  be  added. 

Such  return  having  been  made,  the  jurisdiction  of  the  State  court 
over  that  case  ceases.  If  the  State  court  shall  proceed  with  the 
case  and  make  any  formal  judgment  in  it,  except  that  of  dismissal, 
one  of  two  courses  must  be  taken.  (I)  The  case  may  be  carried  up, 
by  appeal  or  otherwise,  to  the  highest  court  of  the  State,  and  re- 
moved therefrom  by  writ  of  error  to  the  Supreme  Court ;  or,  (2)  the 
judge  may  be  personally  dealt  with  in  accordance  with  law,  and 
with  sucn  instructions  as  may  hereafter  be  issued  in  each  case. 

WILLIAM  WHITING, 
Solicitor  of  the  War  Department. 

Note  A.  —  For  those  who  desire  to  examine  the  practice  and  authorities  on  the 
question,  whether  a  government  has  the  right  to  treat  its  subjects,  in  civil  war, 
as  belligerents  or  as  subjects,  reference  may  be  had  to  the  following,  viz : 
(Stephen's)  Blackstone's  Com.,  Vol.  4,  p.  286.  Marten's  Essai  concernant  les 
Armateurs,  ch.  2,  6ect.  11.  See  17  Geo.  III.  ch.  9  (1777).  Pickering's  Stat- 
utes, Vol.  31,  p.  312.  See  President's  Proclamation,  April  19, 1861.  U.  S.  Stat, 
at  Large,  1861,  App.  p.  ii.  See  charge  of  Nelson,  J.,  on  the  trial  of  the  officers, 
&c,  of  the  Savannah,  p.  371. 

In  this  case  the  rebel  privateer  put  in  as  a  defence  his  commission  to  cruise 
under  the  confederate  flag  ;  and  the  same  defence  was  made  in  Philadelphia  by 
other  persons  indicted  for  piracy.  It  was  held  in  both  of  these  tribunals, 
that  they  must  follow  the  decision  of  the  executive  and  legislative  departments  in 
determining  the  political  status  of  the  Confederate  States ;  and,  that  the  exer- 
cise of  belligerent  rights  by  the  Federal  Government  did  not  imply  any  waiver  or 
renunciation  of  its  sovereign  or  municipal  rights,  or  rights  to  hold  as  subjects  the 
belligerent  inhabitants  of  the  seceded  Slates.     See  also  Smith's  Trial,  page  96. 

The  pirates  tried  in  New  York  were  not  convicted.  Those  who  were  con- 
victed in  Philadelphia  were  not  sentenced,  but,  by  order  of  the  Secretary  of 
State  (Jan.  31,  1862),  were  sent  to  a  military  prison,  to  be  exchanged  as 
prisoners  of  war,  —  this  being  done  to  avoid  threatened  retaliation. 

See  also  authorities  cited  in  "  War  Powers,"  p.  44. 

It  has  been  decided,  since  this  edition  was  in  type,  that  citizens  of  States  in 
rebellion  are  considered  as  public  enemies,  and  are  not  entitled  to  sue  in  the  Court* 
of  the  United  State*,  by  Nelson,  J.,  TJ.  S.  C.  C,  of  Minnesota.  Nash  v.  Dayton, 
also  by  the  Court  of  Appeals  in  Kentucky;  and  this  decision  is  approved  by 
Governor  Bramletce  (see  his  Message  to  Bio.  of  Rep.,  Feb.  )•'!,  L864). 


2  16  imiTAItl     IRR]  STS   i\   TIME   OF   war 

I'm:    following    case   baa    been    decided    in    Ohio  since   thv 
Beventh  edition  of  the  "War  Powers"  went  i<>  press:  — 

1  ROM    rUE  CINCINNATI    i  <>M  Ml. in  I  \l.. 

Til  i;    ('  \si:    OF    K  EES    VS.   TOD. 

JohnW.  B  iray  County  Common  PI  a  . 

•ion.     On  petition  to  remove  the  case,  for  trial,  to  the  United 
Circuit  Court. 

The  defendants,   undei    tl       Let  of  Co     ress  of   March   3,    1863,  present  a 
sworn  petition,  statin-  I  y  within  the  Act,  and  tendering  surety 

as  provided  by  the  Act. 

A  ■•  ;,-■.    i    .   "  That  any  order  of  the  President,  or  under 

ithority,  made  at  any  time  during  the  i  f  the  present  rebellion, 

shall  b  in  all  courts  to  any  action  or  prosecution,  civil  or  criminal, 

j,  or  to  be  i  l,foi  anj  search  or  seizure,  arrest  or  imprisonment, 

.  or  commit  •  -  omitted  to  be  done,  under  and  by  virtue  of 

such  order,  or  under  color  of  any  law  of  Congress,  and  such  defence  may  be 

made  by  special  plea,  or  under  the  general  issue." 

-     •'  >n  5  provides,    "That  if  any  suit  or  prosecution,  civil  or  criminal,  has 

r  shall   be  commenced  in  any  State  court  against  any  officer  civil  or 

military,  or  against  any  other  person,  for  any  arrest  or  imprisonment  made,  or 

other  trespasses  or  wrongs  done  or  committed,  or  any  act  omitted  to  be  done. 

at  any  time   during   the   present   rebellion,   by  virtue    or  under  color  of  any 

authority  derived   from  or  exercised   by  or  under  the  President  of  the  United 

r  any  Act  of  Congress,  and  the  defendant  shall,  at  the  time  of  entering 

his  appearance  in  such  court,  or,  if  such  appearance  shall   have  been  entered 

before  the  passage  of  this  Act,  then  at  the  next  session  of  the  court  in  which 

such  suit  or  prosecution  is  pending,  file  a  petition,  stating  the  facts,  and  verified 

by  affidavit,  for  the  removal  of  the  cause  for  trial  at  the  next  Circuit  Court  of 

-,  to  be  holden  in  the  district  where  the  suit  is  pending,  and 

offer  good  and  sufficient  surety  for  his  tiling  in  such  court,  on  the  first  day  of 

ion,  copies  of  such  process  or  proceedings  against  him,  and  also  for  his 

appearing  in  such  court,  and  entering  special  hail  in  the  cause,  if  special  bail 

was   originally    required    therein,   it   shall    be  the  duty  of  the  State  court  to 

accept  the  surety,  and  proceed  no  further  in  the  cause  or  prosecution,  and  the 

bail  tnat  shall  have  been  originally  taken  shall  be  discharged,  and  such 

being  tiled,  as  aforesaid,  in  such   court  of  the  United    States,  the  cause  shall 

proceed  therein  in  the  same  manner  as  if  it  had  been  brought  in  said  court  by 

.   whatever  may  be    the    amount    in    dispute    or   the    da 
claimed,  or  whatever  the  citizenship  of  the  parties,  any  former  law  to  the  con- 
trary notwithstanding. 

OPINION    OF   JUDGE   DICKEY. 
The  plaintiff  brought  his  action  in  this  court  to  recover  damages  for    an 
alleged  trespa.-s  and  false  imprisonment  by  the  defendants,  and  filed  his  petition 


MILITARY    ARRESTS   IN   TIME   OF   WAR.  217 

on  the  14th  of  September,  1863,  and  caused  summons  to  be  issued  and  served, 
&c.     In  his   petition  he  alleges  that  the  defendants,  on  the  29th  day  of  June, 

1862,  at  the  county  of  Pickaway,  unlawfully  and  maliciously  assaulted  the 
plaintiff,  and  that  the  defendants,  Bliss,  Goodell,  and  Dougherty,  at  the  instance 
and  by  the  procurement  of  the  defendants,  Tod  and  Gregg,  seized  and  laid 
hold  of  the  plaintiff,  and  then  and  there  unlawfully  and  maliciously,  and 
without  any  reasonable  and  probable  cause,  arrested  and  imprisoned  said 
plaintiff,  with  intention  of  having  him  carried  out  of  the  State  of  Ohio  con- 
trary to  the  laws  thereof,  and  that  defendants  Scott  and  Goodell,  then  and 
there,  at  the  instance  and  by  the  procurement  of  the  said  Tod,  Dougherty,  and 
f  rregg,  forced  and  compelled  the  said  plaintiff  to  go  from  and  out  of  his  house, 
situate  and  being  in  said  county  of  Pickaway,  into  the  public  street,  and  so  on  ; 
charging  that  they  compelled  him  to  go  out  of  the  State  of  Ohio,  to  the 
military  prison,  called  the  "  Old  Capitol  Prison,"  in  Washington  City,  and 
there  the  defendants  caused  him  to  be  unlawfully  and  maliciously,  and  against 
his  will,  without  reasonable  or  probable  cause,  imprisoned  for  seventeen  days, 
&c,  to  his  damage,  $30,000. 

On  the  27th  of  October,  1863,  defendants  Tod,  Gregg,  and  Dougherty,  the 
only  defendants  served  with  process,  filed  their  petitions  against  the  plaintiff 
Kees,  stating,  in  substance,  that  the  plaintiff  Kees,  on  the  12th  of  September, 

1863,  filed  his  petition  in  the  court,  and  commenced  a  civil  action  for  the 
wrongs,  injuries,  &c,  as  stated  in  plaintiffs  petition,  making  reference  to  it  for 
particulars,  and  then  going  on  to  set  forth  that  having  been  summoned,  they 
come  and  enter  their  appearance  to  the  plaintiffs  action,  and  state,  that,  so  far 
as  the  arrest,  imprisonment,  wrongs,  &c,  were  committed,  as  alleged  in  plain- 
tiffs petition,  the  same  was  done  during  the  present  rebellion,  about  the  29th 
day  of  June,  1862,  and  prior  to  the  3d  day  of  March,  1863,  by  virtue  and 
under  color  of  authority  derived  from  and  exercised  by  the  President  of  the 
United  States,  and  by  virtue  of  and  under  an  order  issued  from  the  War 
Department  of  the  United  States  (a  copy  of  which  order  is  given). 

The  defendants  then,  after  a  full  statement  of  the  facts  as  they  claim  them, 
relating  to  the  authority,  &c,  further  state,  that  they,  desiring  to  have  the  case 
removed  to  the  next  Circuit  Court  of  the  United  States,  to  be  holden  at  Cin- 
cinnati, &c,  come  and  offer  good  and  sufficient  surety,  &c,  and  then  pray  this 
court  to  accept  the  surety  and  proceed  no  further  in  the  case,  and  to  make 
such  further  order  as  may  be  necessary  for  the  removal  of  the  case  to  the 
Circuit  Court  of  the  United  States. 

The  following  is  the  order  of  the  War  Department  referred  to  : 

War  Department,  Washington,  D.  C,  > 
June  27,  1862.  S 
Sir  :  Proceed,  with  one  assi^tnnt,  by  first  train,  to  Circleville,  in  the  State 
of  Ohio,  arrest  there,  or  wherever  else  he  may  be  found,  John  W,  Kees,  editor 
and  publisher  of  the  "  Circleville  Watchman,"  and  deliver  him  to  the  com- 
mandant at  Camp  Chase,  permitting  no  communication  with  him  except  by 
yourself,  and  your  subordinates  charged  with  his  safe  keeping,  and,  if  you  think 
fit,  bv  his  family  in  vour  presence.     Examine  all  papers,  private  or  otherwise, 

'  28 


MILITARY    A.RRESTS    IN    TIME   OF    WAR. 

(bund  tper,  the  residence  of  tees,  or  on  hi^  pi  rson,  and 

with  you  t.>  the  department  nil  thai  maj  be  found  of  a  treasonable  oi 

suspicious  nature,  as  «  ell  as  a  copy  of  each  issue  of  the  ••  Watchman  "  during 

.  :  four  months.     Close  the  office,  locking  up  the  presses,  type,  paper, 

ther  materia]  found  therein,  and   place  it  in  charge  of  a  discreel  and 

irthy person,  who  «iil   Bee  that  it  is  safely  kept.     It"  you  think  any 

i  aid  will  be  nea  ssary,  call  on  Qovernoi   rod,  at  Columbus,  who  %\  i  1 1  be 

requested  to  give  you  such  information  and  aid  as  you  may  think  needful  in 

enabling  you  to  fulfil  your  duty. 

Lei   this  order  ted    promptly,  discreetly,  and  quietly;  and,  when 

executed,  make  full  report  of  your  doings  hi  n  under  to  this  department. 
By  order  of  the  Secretary  of  War. 

-  .ned)  C.  P.  WOLCOTT, 

Assistant  Secretary  of  War. 

It  was  sit  forth  in  defendant's  petition  that  this  order  was  addressed  to  Wm. 
H.  Scott,  Washington,  D.  C,  and  delivered  to  him,  and  that  he  proceeded  to 
ution,  and  called  at  the  Executive  office,  in  Columbus,  was  given  infor- 
mation in  regard  to  Kees,  his  paper,  and  persons,  to  call  on  at  Circleville,  &c., 
by  one  of  the  Governor's  staff;  and  that  Scott  did  proceed  to  Circleville,  and 
arrest  Kees  under  and  by  virtue  of  the  command  of  the  order  referred  to,  &c. 
And  the  petition  of  the  defendant,  David  Tod,  further  states,  that  about  the  Gth 
of  June,  1862,  prior  to  the  issuing  of  the  order,  the  Circleville  Watchman  of 
that  date,  edited  and  published  by  Kees,  was  mailed  to  him  as  Governor,  con- 
taining marked  editorial  articles,  highly  libellous,  inflammatory,  and  treasonable 
in  their  character,  well  calculated  and  intended  to  prevent  enlistments,  weaken 
the  military  power  of  the  government,  and  produce  opposition  to  it  in  its 
efforts  to  crush  the  rebellion,  and  excite  further  rebellion  —  copies  of  which 
articles,  and  others  of  like  character  issued  prior  to  the  order,  are  shown  with 
the  petition. 

The  defendant  Tod  further  states  that  he  enclosed  the  Watchman  contain- 
ing the  marked  articles  by  mail  to  the  Secretary  of  War,  with  a  letter,  calling 
the  Secretary's  attention  to  the  marked  articles,  and  hoping  that  the  Secretary 
would  at  once  put  its  editor,  John  W.  Kees.  with  his  secession  rebel  friends,  in 
Camp  Chase  prison,  where  it  would  be  his  (the  Governor's)  pleasure  to  see 
that  he  (Kees)  would  be  safely  kept 

He  further  states  that  he  has  set  forth  his  only  connection  with  the  alleged 
arrest,  kc,  and  that  he  did  nothing  more  ;  and  all  he  did  was  in  his  capacity 
as  Governor  of  Ohio,  and  in  performance  of  his  duty  to  the  national 
government. 

The  case  has  been  argued  and  heard  upon  the  defendant's  petitions  for  the 
removal  of  it  to  the  Circuit  Court  of  the  United  States. 

It  nowhere  appears  in  the  petition  of  the  plaintiff,  that  the  defendants,  in  the 
commission  of  the  trespasses  and  wrongs  against  the  person  of  the  plaintiff,  as 
alleged,  were  acting  under  any  authority,  or  color  of  authority,  from  any 
source  whatever.  And  so  far  as  appears  from  the  petition  of  the  plaintiff,  this 
Court  has  complete  jurisdiction  of  the  case. 


MILITARY    ARRESTS    IN    TIME    OF   WAR.  219 

But,  the  defendants  having  filed  their  petitions  for  the  removal  of  the  case 
under  the  fifth  section  of  the  act  of  Congress,  approved  March  3,  1863,  "relat- 
ing to  habeas  corpus  and  regulating  judicial  proceedings  in  certain  cases," 
which,  if  applicable,  and  not  clearly  invalid,  so  far  as  applicable,  would 
require  that  the  prayer  of  the  defendants  should  be  granted,  no  objection  to 
the  manner  and  form  in  which  the  application  has  been  made  having  been 
raised  by  the  plaintiff. 

[Here  follows  the  sections  of  the  law,  as  quoted  above.] 

The  mere  reading  of  this  fifth  section,  of  itself,  shows  its  applicability  to  the 
case  before  us ;  indeed,  I  believe  that  is  not  denied  by  the  council  for  the 
plaintiff. 

But  it  is  claimed  that  the  law  is  invalid,  because  not  authorized  by  the 
Constitution  of  the  United  States,  and  because,  when  applied  to  the  case  in 
hand,  is  ex  post  facto,  the  right  of  action  having  accrued  prior  to  the  passage  of 
the  law.  Whatever  may  be  said  of  the  attempt  in  the  fourth  section  to  create 
a  defence,  or  provide  an  indemnity  against  trespasses  committed  prior  to  its 
passage,  cannot  be  urged  successfully  against  the  fifth  section,  which  only 
affects  the  remedy,  and  does  not,  in  any  manner,  touch  either  the  subject- 
matter  of  the  action  or  of  the  defence. 

These  sections  of  the  act  are  so  far  distinct  and  separable,  that  the  fifth  may 
be  sustained  independent  of  the  fourth. 

The  object  of  the  fourth  section  seems  to  be,  to  declare  what  is,  or  to  provide 
what  shall  be,  a  defence  in  certain  cases,  to  wit:  "any  order  of  the  President, 
or  under  his  authority."  This  applies  only  to  cases  where  there  is  an  o>-der, 
and  constitutes  such  order  a  defence  in  all  courts  where  it  shall  be  pleaded, 
whether  in  State  or  Federal  Courts.  The  object  of  the  fifth  section  is  to  pro- 
vide a  mode  for  the  transfer  of  certain  cases  from  the  State  to  the  Federal 
Courts,  to  wit :  "all  suits  or  prosecutions  for  act  done  or  committed  by  virtue 
or  under  color  of  any  authority  derived  from  the  President,  or  any  act  of 
Congress."  This  section  applies  to  cases  not  included  in  the  fourth  section  ; 
it  applies  to  all  such  cases  as  stated,  whether  there  be  any  order  or  not. 

In  order  to  secure  the  benefit  of  it,  its  provisions  must  be  strictly  followed. 

Thus  it  will  be  seen  that  either  of  these  sections  may  be  invoked  without  the 
other,  and  that  the  fifth  is  applicable  to  cases  to  which  the  fourth  is  not ;  and 
while  the  object  of  the  fourth  is  to  provide  or  declare  rights,  the  object  of  the 
fifth  is  to  regulate  the  practice  in  those  and  certain  other  cases.  For  these 
reasons,  the  two  sections  are  so  far  separable  and  independent  of  each  other, 
that  the  fifth  may  be  held  constitutional  and  the  fourth  unconstitutional.  And, 
as  it  is  not  claimed  that  the  fifth  section  is  of  itself  unconstitutional,  but  only 
becomes  so  by  reason  of  its  inseparable  connection  with  the  fourth,  I  conclude 
that,  as  there  is  no  such  connection  between  them,  the  argument  fails,  and  the 
Court  may  be  justified  in  holding  the  fifth  valid,  without  determining  the  valid- 
ity of  the  fourth. 

It  will  not  be  denied  but  that  the  Legislature  of  Ohio  might,  even  after  the 
right  of  an  action  of  trespass  in  favor  of  a  party  had  accrued  against  a  Con- 
stable or  Sheriff,  pass  a  law  providing  that  where  such  Constable  or  SherifT  had 
been  sued  in  trespass,  before  a  Justice  of  the   Peace,  as  an  individual,  that  if 


220  mii.IT\k>    A.RRE8TS   in    i'lMi;   OF   WAR. 

inch  ofl  d  to  justify  under  a  wi  that  known  to  the 

Justice,  then  it  Bhould  be  his  duty  t « >  certify  the  case  to  a  Court  of  R 

j  cognizance  of  the  offl  ndant.     Neither  the  subject- 

in  nor  the  defence  would  be  in  the  least  I 

with;  the  mode  of  proceeding  and  the  rerai  Ij  .    that  is  all. 

A  more  ap]  tribunal  is  provided;  and  so  here  this  fifth  section  pro- 

mother  tribunal —  one  having  cognizance  of  United  States  officers!  their 
official  acts,  and  of  the  Constitution  and  Laws  of  the  United  States,  under  which 

new  di  6  nee  is  en  ated,  uor  the  righl  of  action  any  way  imp 
This  B4  ction,  then  fore,  is  not  invalid  on  the  ground  <>t"  its  being  retroactive. 

[1  is,  however,  claimed  that  the  facts  set  forth  in  the  petition  of  di  fendant 
ran  constitute  no  defence,  as  the  order  under  which  the  arrest  was  made  was 
issui  1  without  authority  under  tlie  Constitution  of  the  United  States,  or  the 
laws  tl  er  of,  and  that  the  fourth  section  of  the  act  cannot  support  the  defence, 
although  in  terms  it  may  include  it  —  for  two  reasons  :  first,  because  that  sec- 
tion attempts  to  create  a  defence  to  a  valid  cause  of  action  after  it  arose,  and  is, 
troactive;  and,  second,  because  Congress  can  confer  no  power  on 
the  President  to  issue,  or  cause  to  be  issued,  such  orders,  cither  in  time  of  war 
or  peace,  by  virtue  of  any  grant  in  the  Constitution,  by  inference  or  otherwise ; 
and  that  the  attempt,  therefore,  to  make  such  defence,  is  a  nullity,  and  being  so, 
the  defence  and  the  application  to  remove  must  fall  together. 

As  to  the  first  reason,  suffice  it  to  say,  "sufficient  unto  the  day  is  the  evil 
thereof."  When  the  defence  provided  by  the  fourth  section  is  set  up  upon  the  trial 
of  the  cause  upon  its  merits,  either  in  this  court  or  in  the  court  to  which  it 
may  be  removed,  it  will  be  time  enough  to  decide  the  question.  To  do  so  now 
would  be  to  prejudge  the  case  without  a  full  hearing  on  the  merits,  and,  if 
decided  for  the  defendants,  there  would  be  no  need  for  a  removal,  and  if  for 
the  plaintiff,  the  only  matter  left  would  be  an  inquiry  into  damages;  it  would 
be  equivalent  to  the  decision  of  a  demurrer  to  defendant's  answer,  on  this  pre- 
liminary application,  and  would  be  taking  from  the  tribunal  who:,c  jurisdiction 
is  sought,  one  of  the  questions  upon  which  it  should  pass. 

Again,  granting  that  this  fourth  section  is,  so  far  as  the  case  at  bar  is 
concerned,  ex  post  facto  in  terms,  and  should  be  so  held  when  the  case  is  tried 
upon  its  merits,  we  are  brought  to  consider  the  second  reason  given  for  its 
invalidity.  Suppose  the  power  to  issue  the  order  in  question  existed  in  the 
President,  independent  of  section  fourth,  would  its  enactment  annul  that  power, 
or  only  declare  it  ?  The  act  in  question  does  not  attempt  to  confer  the  power 
on  the  President  to  issue,  or  cause  to  be  issued,  such  order ;  it  merely  declares 
that  such  orders,  when  issued  shall  be  a  good  defence,  proceeding  upon  the 
hypothe-i-,  as  we  suppose,  that  he  always  possessed  the  power;  so  that  in  this 
view  the  fourth  section  partakes  more  of  the  nature  of  an  act  declaratory,  than 
of  the  enactment  of  a  new  law  conferring  power.  Enough,  perhaps,  has  already 
been  said  to  justify  this  court  in  granting  the  prayer  of  the  defendants'  petitions, 
and  leave  the  question  as  to  the  authority  of  the  War  Department  to  issue  the 
order  set  forth,  for  decision  in  the  Circuit  Court  as  the  appropriate  tribunal. 
But,  inasmuch  as  it  is  claimed  by  the  plaintiff,  that  no  such  authority,  or  color 
of  authority  exists,  and  that  therefore  there  is  no  foundation  for  the  jurisdiction 


MILITARY  ARRESTS   IN   TIME   OF   WAR.  221 

sought  by  the  defendants,  I  will  proceed  to  offer  reasons  and  authority,  to  show 
that  it  is  at  least  a  question  of  serious  doubt,  and, therefore,  proper  for  the  Unit- 
ed States  Court,  as  the  doubt  should  be  resolved  in  favor  of  the  law. 

Then,  let  us  inquire  into  the  power  of  the  President,  under  the  constitution, 
as  commander-in  chief  of  the  army  and  navy,  in  time  of  a  fearful  rebellion  like 
the  present,  to  issue,  or  cause  to  be  issued,  such  orders  of  arrest,  &c.  We  all 
know  the  history  of  the  sad  times  that  have  fallen  upon  us.  The  fact  of  a  most 
violent,  bloody,  and  terrific  war,  threatening  our  entire  destruction  as  a  nation  — 
the  imminent  and  immediate  danger  which  threatens  us  in  all  we  have  and  are 
in  life  —  and  of  this  contemporaneous  history,  of  course  the  court  should  and 
will  take  notice. 

In  view  of  this,  then,  let  us  turn  to  the  petition  of  the  defendant  David  Tod, 
and  ascertain,  if  we  can,  something  of  the  cause  of  the  arrest.  It  appears  in  the 
petition  that  the  defendant,  prior  to  the  issuing  of  the  order,  wrote  a  letter  to 
the  War  Department,  enclosing  certain  marked  editorials  of  the  Watchman,  of 
which  Kees  was  editor  and  publisher,  calling  the  attention  of  the  Secretary  of 
War  thereto,  and  expressing  a  hope  that  the  Secretary  would  at  once  put  Kees, 
with  his  secession  rebel  friends,  in  Camp  Chase  Prison,  &c.  Copies  of  the 
editorials  are  referred  to  in,  and  filed  with,  the  petition.  In  the  article  of  June 
6,  1862,  this  passage  occurs  :  "  We  advised  all  Democrats  to  stay  at  home,  and 
let  the  authors  and  provokers  of  this  war,  the  Abolition  Republicans,  fight  out 
their  own  war  themselves ;  this  is  what  ought  to  have  been  done.  If  such  had  been 
the  policy  of  the  Democracy,  we  would  not  to-day  have  a  devastated  country, 
drenched  in  fraternal  blood."  Again,  in  an  editorial  article  of  the  Watchman, 
June  13,  1862,  is  this  question,  (after  speaking  of  Ben.  Butler  in  exceedingly 
harsh  terms,)  "  Why  don't  the  men  of  New  Orleans  shoot  the  infamous  wretch 
like  they  would  a  reptile  or  a  dog."  These,  with  many  kindred  extracts,  are 
filed  with  the  petition,  and  are  characterized  in  the  petition  of  Governor  Tod 
as  highly  libellous,  inflammatory  and  treasonable  in  character,  well  calculated 
and  intended  to  prevent  enlistments,  weaken  the  military  power  of  the  govern- 
ment, and  produce  opposition  to  it  in  its  efforts  to  crush  the  rebellion,  and 
excite  further  rebellion.  This  is  all  the  information  wc  have  as  to  the  cause  of 
the  arrest  of  Kees ;  whether  the  War  Department  had  other  and  further  foun- 
dation we  know  not — the  presumption  is,  so  far  as  this  motion  is  concerned, 
that  the  information  it  had,  whether  under  oath  or  otherwise,  was  deemed 
sufficient  by  it,  for  his  arrest ;  sufficient  to  establish  the  fact,  that  the  danger 
from  Kees  to  the  public  service,  while  left  at  liberty,  was  immediate  and  impend- 
ing, and  that  the  urgent  necessity  for  the  public  service  demanded  his  arrest. 
Whether  this  was  so  or  not,  I  do  not  undertake  to  say,  nor  is  it  necessary  to 
decide,  in  disposing  of  this  motion. 

Article  3d,  Section  2d,  of  the  Federal  Constitution  provides  that  "The  judi- 
cial power  (of  the  United  States)  shall  extend  to  all  cases  in  law  and  equity 
arising  under  this  Constitution  and  the  laws  of  the  United  States,"  &c. 

The  President  is  commander  in-chief  of  the  army  and  navy,  by  express  pro- 
vision of  the  Constitution.  Now,  if  the  power  to  issue  this  order  of  arrest  is 
incident  to  his  office  as  Commander-in-chief,  then,  by  necessary  implication, 
the  power  is  derived  from  the  Constitution,  without  the  aid  of  the  fourth  section 


222  MILITARY     ARRESTS    IN     llMi      OP    WAIL 

i  to,  and,  if  Kees  was  arrested  by  virtue  of  such  order,  then  the  case 
arose  onder  the  constitution,  and  the  United  States  courts  have  jurisdiction, 
be  transferred  in  the  manner  pointed  out  by  the 
fifth  section  of  that  act,  independent  of  the  fourth. 

And,  if  such  power  belongs  to  the  President,  as  an  incident  to  his  office  of 
Commander-in-chief,  no  question  l>ut  he  may  transfer  it  to  his  subordinates,  for 
till  the  war  power  Tested  in  him  may  be,  and  is,  distributed  to  the  vast  army  of 
who  act  under  him  as  his  agents.  Upon  this  question  there  is, 
n,  a  great  conflict  of  opinion,  both  legal  and  political.  The  order 
by  which  Mr.  Vallandigham  was  arrested,  was  from  the  same  source  of  power. 
Judge  Leavitt  passed  upon  the  question  and  upheld  the  power,  and  Mr.  Val- 
landigham was  tried  and  sentenced  under  it. 

It  is  claimed  that  the  power  in  question  is  exercised  under  what  is  called 
martial  law.  or  the  right  of  war,  and  not  under  military  law,  which,- it  is  said, 
is  defined  by  the  articles  of  war  and  the  decisions  under  them,  and  is  for  the 
government  of  the  army,  &C.  And  it  is  claimed  that  this  martial  authority 
belongs,  as  a  necessary  incident,  to  the  commander-in-chief,  and  that  when 
that  office  is  conferred,  the  necessary  incident,  in  time  of  war,  is  conferred  with 
it,  and  is  as  much  a  part  of  the  office  as  any  other. 

N  ■.  if  this  be  so,  it  follows,  of  course,  that  when  the  office  of  commander- 
in-chief  is  conferred  by  the  Constitution  upon  the  President,  this  martial  power 
is  also  conferred  and  secured,  as  clearly  as  the  right  of  trial  by  jury,  the  liberty 
of  the  person,  the  freedom  of  speech  and  of  the  press,  is  secured  to  the  citizen 
in  time  of  peace. 

The  question  here  is,  not  whether  the  power  was  exercised  under  proper  re- 
straint, but  whither  it  exists  all,  and  it  is  not  necessary  to  its  exercise  that 
martial  law  shall  first  have  been  declared.  Cases  are  numerous,  both  in  Amer- 
ica and  in  Europe,  where  the  authority,  of  the  nature  of  the  power  in  question 
has  been  exercised  in  time  of  war,  by  the  commander-in-chief  and  his  sub- 
ordinates, in  the  absence  of  the  declaration  of  martial  law,  and  afterwards  sus- 
tained by  the  civil  courts.  In  the  case  of  Mitchell  vs.  Harmony,  reported  in  13 
Howard,  115,  which  was  an  action  brought  by  the  plaintiff  against  the  defend- 
ant, to  recover  damages  for  the  seizure  of  property,  as  a  commander  in  the 
Mexican  war,  under  the  pretext  of  military  necessity,  Chief  Justice  Taney,  in 
delivering  the  opinion  of  the  court  in  that  case,  said,  "It  is  impossible  to 
define  the  particular  circumstances  of  danger  or  necessity  in  which  the  power 
may  be  lawfully  exercised.  Every  case  must  depend  on  its  own  circumstan- 
ces. It  is  the  emergency  that  gives  the  right.  In  deciding  upon  this  necessity, 
however,  the  state  of  facts,  as  they  appeared  to  the  officer  at  the  time  he  acted, 
must  govern  the  decision,  for  he  must  necessarily  act  upon  the  information  of 
others  as  well  as  his  own  observation.  And  if,  with  such  information  as  he 
had  a  right  to  rely  on,  there  is  reasonable  ground  for  believing  that  the  peril  is 
immediate  and  menacing,  or  the  necessity  urgent,  he  is  justified  in  acting  upon 
it,  and  the  discovery  afterwards,  that  it  was  false  and  erroneous,  will  not  make 
him  a  trespasser."  Now,  it  is  urged  that  the  power  exercised  by  the  defendants 
in  the  case  named,  was  a  partial  exercise  of  martial  law,  and  did  not  depend 
upon  time  or  place,  but  upon  the  emergency,  and  that  it  was  the  emergency  that 
gave  the  right  to  exercise  it. 


MILITARY    ARRESTS   IN   TIME   OF   WAR.  223 

Chancellor  Kent  lays  down  the  doctrine  that  martial  law  is  quite  a  distinct 
thing  from  military  law  ;  that  it  exists  only  in  time  of  war,  and  originates  only 
in  military  necessity.  It  derives  no  authority  from  the  civil  law,  no  assistance 
from  the  civil  tribunals,  for  it  overrules,  suspends,  and  replaces  them.  See 
Cushing's  Opinions  of  Attorney  Generals  of  the  United  States,  vol.  8,  page  365, 
&c,  and  the  authorities  there  cited.  See  also  the  case  of  Luther  vs.  Borden, 
et.  al.,  7  Howard,  page  1. 

It  is  also  claimed  that  Washington's  army  exercised  the  power  in  question, 
during  the  whiskey  insurrection  of  1794  and  1795,  and  that  General  Wilkinson, 
under  the  authority  of  Jefferson,  exercised  it  during  the  Burr  conspiracy,  in 
1806;  and  that  General  Jackson  called  it  into  requisition  at  New  Orleans,  in 
1814. 

In  the  case  of  the  application  of  Nicholas  Kemp,  for  a  writ  of  habeas  corpus, 
the  Supreme  Court  of  Wisconsin  recently  decided  against  the  power  it  gave 
the  President  to  suspend  the  writ,  but  recognized  the  war  right,  or  martial  law, 
under  certain  limitations. 

See  also  the  case  of  Brown  vs.  the  United  States,  book  8,  Cranch,  page  153, 
where  Chief  Justice  Marshall,  in  delivering  the  opinion  of  the  court,  holds  that 
"  as  a  consequence  of  the  power  of  declaring  war  and  making  treaties,  &c,  when 
the  legislative  authority  has  declared  war,  the  Executive,  to  whom  its  execution 
is  confided,  is  bound  to  carry  it  into  effect ;  he  has  a  discretion  vested  in  him  as 
to  the  manner  and  extent :  but  he  cannot,  morally,  transcend  the  rules  of  war- 
fare established  among  civilized  nations." 

See  Vattel,  pages  5  and  6,  where  the  rule  is  laid  down,  that  "  a  nation  has  a 
right  to  every  thing  that  can  help  to  ward  off  imminent  dangers,  and  keep  at  a 
distance  whatever  is  capable  of  causing  its  ruin,  and  that  from  the  very  same 
reasons  that  establish  its  rights  to  the  things  necessary  for  its  preservation. " 
He  also  lays  down  the  rule,  that  the  same  rules  of  war  apply  to  civil  as  to 
foreign  wars.  » 

It  is  not  controverted  but  that  the  commander  of  an  army  may  exercise,  in 
proper  cases,  the  power  in  question,  over  both  property  and  person,  within  the 
territory  and  its  vicinity  under  the  control  of  the  army,  although  martial  law 
has  not  been  declared,  nor  the  civil  law  entirely  suspended.  What  is  it,  then, 
but  a  partial  exercise  of  martial  law  ?  And  what  gives  the  right  but  a  military 
necessity,  or  emergency  ?  And  from  what  source  does  the  power  come,  if  not 
from  the  President,  as  commander-in-chief?  Now,  what  good  reason  can  there 
be  for  confining  the  power  to  and  within  the  lines  of  the  army,  provided  a  like 
urgent  necessity  and  emergency  arises  or  exists  at  any  other  point  outside  of 
the  lines  of  the  army,  and  within  the  territory  of  the  government  or  nation  ? 
What  is  the  theatre  of  the  present  war  in  this  country  ?  Is  it  only  that  portion 
of  the  country  included  within  the  lines  of  the  armies,  which  extend  from  the 
Chesapeake  Bay  to  the  spurs  of  the  Rocky  Mountains  ?  or  is  it  not  rather  the 
whole  nation,  the  loyal  States  upon  the  one  side,  and  the  disloyal  upon  the 
other  ?  and  are  not  all  within  the  vicinity  of  the  lines  of  the  armies,  as  far  as  that 
vicinity  is  to  be  considered  as  affecting  the  exercise  of  the  authority  in  dispute  ? 

The  right  to  impress  private  property,  cither  for  the  use  of  the  government, 
or  to  prevent  it  from   falling  into  the  hands  of  the  enemy,  arising  from  urgent 


•J:.' I  IHLITAfH    ARRESTS   IN    I'lMi:  OF   WAR. 

•y,  or  from  immediate  impending  danger,  any  where  within  the  territory 
of  the  country,  although  outside  the  Lines  of  the  array,  has  never,  that  I  am 

f,  been  disputed  j  but  whether  the  em  Lsted,  or  the   im 

ment  was  properly  mad  .  m  ij  be  disputed,  and  is  a  question  of  fact.  There 
are  numerous  instances  where  tins  power  has  1"  en  exercised  outside  of  the 
irmy,  and  no  one  has  doubted  its  Legitimacy.  Railroads  and  t .  1 1-- 
graphs,  with  their  machinery  and  employes,  are  frequi  ntlj  bi  ized  and  impressed 
into  th         •  '■  rnment,  and  controlled  per  force,  and  the  emer- 

p  Lied  upon  to  justify  the  act,  the  whole  countrj  acquiescing  therein.    In 
Buch  cases  the  commander  must  be  the  judge  of  th  ty,  and  if  he 

cists,  and  issues  the  order  for  the  impressment,  his 
subordinates  arc  bound  to  obey.  And  it  would  seem  from  a  well-settled  prin- 
ciple of  the  common  law  that  such  subordinates  would  be  justified,  although 
mmandi  t  may  have  had  but  slight  foundation  for  the  exercise  of  the 
authority,  and  this  upon  the  principle  that,  if  the  powi  r  existed  at  all,  the  com- 
r,  and  not  the  soldier,  is  to  judge  of  the  limitations  under  which  it  is  to 
be  exercised.  If  the  order  is  wanton,  the  party  injured  has  his  remedy  against 
the  commander.  If  it  is  said  that  the  recognition  of  such  a  doctrine  is  danger- 
ous to  the  liberties  and  rights  of  the  people,  and  tends  to  subvert  free  govern- 
ment and  establish  despotism,  the  answer  is,  that  the  abuse  of  any  power  tends 
to  the  same  end,  and  that  it  is  the  abuse,  and  not  the  legitimate  exercise  of  it, 
which  makes  it  dangerous.  The  limitations  are  well  defined,  and  if  he  who 
undertakes  to  exercise  it  oversteps  the  bounds,  he  may  be  called  to  an  account ; 
and  if  the  President  corruptly  and  wantonly  exercises  it,  he  may  be  impeached, 
and  at  the  end  of  his  term  the  people  will  correct  the  error.  But  it  is  claimed, 
that  although  the  authority  may  be  exercised  over  property  as  stated,  yet  it  can- 
not be  so  exercised  over  persons,  although  the  same  danger  and  urgent 
necessity  may  exist ;  for  the  reason  that,  in  the  case  of  the  impressment  of  prop- 
erty, a  compensation  is  made  by  the  government  to  the  owner,  while  in  the 
case  of  the  arrest  of  the  person  no  such  compensation  can  be  made.  Now, 
does  the  fact  of  compensation  give  the  right  to  impress  ?  It  is  not  so  laid  down 
by  any  authority  which  has  come  under  my  notice.  Compensation  is  not  the 
test  of  the  right,  but  one  of  the  results  of  the  act.  The  right  arises  from  a  far 
higher  source,  to  wit,  the  right  of  a  nation  to  do  any  act  which  will  ward  off 
a  dangerous  blow  aimed  at  its  existence,  and  which  tends  to  preserve  its  life  in 
time  of  war. 

This  test,  it  is  claimed  with  great  force,  applies  as  well  to  the  arrest  of  a  per- 
son as  to  the  impressment  of  his  property,  under  proper  restraints  and  in  a 
proper  case.  # 

But,  again,  it  is  claimed  that  the  recognition  of  this  doctrine  subverts  the 
guarantees  of  the  Constitution,  of  the  right  of  trial  by  jury,  and  against  unrea- 
sonable search,  seizure  &c.  While,  on  the  other  hand,  it  is  argued  that  the 
power  is  incident  to  the  office  of  commander-in-chief  of  the  armies  in  time  of 
war,  and  necessarily  implied.  And,  I  ask,  is  this  not  true  when  the  case  arises 
within  the  limits  of  the  army,  where  its  exercise  is  uncontrovcrted  ?  And  if 
the  guarantees  of  the  Constitution  arc  inapplicable  in  the  one  case,  are  they  not 
equally  so  in  the  other  ?  and  if  the  immediate  danger  and  urgent  necessity  i» 


MILITARY   ARRESTS   IN   TIME   OF   WAR.  '    225 

the  foundation  of  the  right,  and  that  may  be  exercised  outside  as  well  as  inside 
the  lines,  where  is  the  line  of  distinction  to  be  drawn  ? 

Again,  was  the  order  of  arrest  in  question  issued  upon  the  charge  of  the 
commission  of  any  crime,  or  only  because  there  was  supposed  to  be  imminent 
and  impending  danger  that  an  irreparable  injury  would  be  committed,  and  in 
this  view  may  not  the  government  act  upon  the  same  principle  that  civil 
courts  act  in  cases  of  peace  warrants  ?  Where  a  citizen  has  been  arrested  and 
brought  before  the  court  on  a  peace  warrant,  and  tried,  without  a  jury,  and 
the  court  find  that  the  complainant  has  just  cause  to  fear,  and  does  fear,  that 
the  accused  will  kill  him,  the  court  Mill  require  bail  to  keep  the  peace,  and,  in 
default  of  bail,  will  imprison  the  defendant,  not  for  any  crime  that  he  has  com- 
mitted, but  for  fear  that  he  will  commit  an  irreparable  injury.  Now,  shall  the 
government  be  denied  a  remedy  in  a  like  case,  where  an  irreparable  injury  to 
it  in  time  of  war  is  threatened  and  impending,  and  where  the  commander-in- 
chief,  or  his  subordinates,  are  convinced  that  a  citizen,  inimical  to  the  govern- 
ment, is  about  to  commit  some  act  against  the  government  and  iir  favor  of  the 
enemy,  which,  if  committed,  will  be  irreparable,  and  that  there  is  imminent 
and  immediate  danger  that  the  act  will  be  committed  ?  May  not  the  authorities, 
in  order  to  prevent  it,  take  steps  to  avert  it,  and,  if  necessity  requires,  to  re- 
strain such  citizen  per  force  —  even  by  imprisonment  —  until  the  danger  is  past, 
although  no  crime  has  actually  been  committed,  and  this  be  justified  under  the 
usages  of  war,  or  a  partial  exercise  of  martial  law,  it  matters  not  by  what  name 
it  is  called  ? 

I  do  not  intend  to  decide,  nor  do  I  wish  to  be  understood  as  deciding, 
whether  the  Secretary  of  War  was  justifiable  in  issuing  the  order  in  question, 
or  whether  the  defendants  can  justify  under  it,  for  that,  I  consider,  should  be 
left  for  the  trial  on  the  merits  of  the  case. 

I  have  made  these  suggestions,  and  cited  authorities  to  show,  that  it  would 
look  like  an  unwarranted  usurpation  in  this  court,  more  dangerous,  perhaps, 
than  the  military  power  objected  to,  to  pass  upon  and  nullify  the  fifth  section  of 
the  act  of  Congress,  under  which  the  defendants'  petitions  are  filed,  in  this  sum- 
mary and  preliminary  proceeding,  and  thus  wrench  from  the  defendants,  who 
stand  in  a  United  States  relation  to  the  case,  the  right  to  have  it  heard  and 
determined  by  a  United  States  court. 

The  plaintiff  has  all  the  guarantees  for  a  fair  and  impartial  hearing  and  trial 
in  that  court  that  he  has  in  the  State  courts ;  and,  besides,  one  principal  reason 
why  such  cases  should  be  tried  in  the  Federal  courts,  is,  to  secure  uniformity  in 
the  rules  governing  such  cases.  If  it  were  left  to  the  State  courts  —  as  these 
cases  concerning  United  States  laws,  Constitution,  and  officers  arise  in  every 
State  —  there  might  be  as  great  a  variety  of  contradictory  decisions  as  there  are 
State  courts.  The  consequence  would  be,  that  no  man  would  or  could  know 
the  law  governing  United  States  officers,  and  the  affairs  of  the  nation  would 
run  into  utter  confusion,  and  the  officer  would  be  constantly  liable  to  be  ha- 
ra  ised  in  each  State,  and  subject  to  a  different  law  or  rule  every  time  he  crossed 
a  State  line.     The  prayer  of  the  defendants'  petitions  is  granted. 

29 


RETURN 


OP 


REBELLIOUS  STATES 


TO    THE    UNION. 


THE 


RETURN  OF  REBELLIOUS  STATES 

TO   THE   UNION.* 


TWOFOLD    WAR. 


However  brilliant  the  success  of  our  military  opera- 
tions has  been,  the  country  is  encompassed  by  dangers. 
Two  wars  are  still  waged  between  the  citizens  of  the 
United  States  —  a  war  of  Arms  and  a  war  of  Ideas. 
Achievements  in  the  field  cannot  much  outstrip  our 
moral  victories.  While  we  fix  our  attention  upon  the 
checkered  fortunes  of  our  heroic  soldiers,  and  trace 
their  marches  over  hills  and  valleys  made  memorable 
through  all  time  by  their  disasters  or  their  triumphs ; 
while  we  are  agitated  by  hope  and  fear,  by  exultation 
and  disappointment ;  while  our  brothers  and  sons  rush 

*  During  the  spring  and  summer  of  1863  efforts  were  made  by  certain 
citizens  of  Florida,  Louisiana,  Arkansas,  and  Eastern  Virginia  to  obtain  the 
assent  of  the  President  to  the  formation  of  local  state  governments,  and  to 
the  recognition  thereof  by  the  Executive  and  Legislative  departments.  The 
views  on  this  subject  contained  in  the  following  pages,  having  been  commu- 
nicated verbally  to  the  President,  were  subsequently  embodied  in  a  letter  to 
the  Union  League  of  Philadelphia,  published  July  28,  1863. 

(229) 


230  RECONSTRUCTION    ov  THE   UNION. 

joj  t'ull  v  to  the  posl  of  danger  and  of  honor,  although 
the  mourning  weeds  of  the  mother  and  sister  record 

in  the  family  the  tearful  glory  Of  the  fallen  brave; 
while  the  movements  Of  Our  vast  armies,  in  all  the 
"pride,  pomp,  and  circumstance  of  glorious  war,"  are 
watched  with  intense  solicitude,  let  us  not  forget  that 
there  is  another  war,  waged  by  men  not  less  brave,  for 
victories  not  less  renowned  than  those  which  are  won 
on  battle-fields. 

The  deadliest  struggle  is  between  Civilization  and 
Barbarism,  Freedom  and  Slavery,  Republicanism  and 
Aristocracy,  Loyalty  and  Treason. 

The  true  patriot  will  watch  with  profound  interest 
the  fortunes  of  this  intellectual  and  moral  conflict, 
because  the  issue  involves  the  country's  safety,  pros- 
perity, and  honor.  If  victory  shall  crown  the  efforts 
of  those  brave  men  who  believe  and  trust  in  God,  then 
shall  all  this  bloody  sacrifice  be  consecrated,  and 
years  of  suffering  shall  exalt  us  among  the  nations; 
if  we  fail,  no  triumph  of  brute  force  can  compensate 
the  world  for  our  unfathomable  degradation. 

Let  us  then  endeavor  to  appreciate  the  difficulties  of 
our  present  position. 

BREAKERS    AHEAD. 

Of  several  subjects,  to  which,  were  it  now  in  my 
power,  I  would  ask  your  earnest  attention,  I  can  speak 
of  one  only. 

As  the  success  of  the  Union  cause  shall  become  more 
certain  and  apparent  to  the  enemy  in  various  localities, 
they  will  lay  down  arms  and  cease  fighting. 

Their  bitter  and  deep-rooted  hatred  of  the  Govern- 
ment, and  of  all  Northern  men  who  are  not  traitors,  and 


RECONSTRUCTION    OF   THE    UNION.  231 

of  all  Southern  men  who  are  loyal,  will  still  remain 
interwoven  in  every  fibre  of  their  hearts,  and  will  be 
made,  if  possible,  more  intense  by  the  humiliation  of 
conquest  and  subjection.  The  foot  of  the  conqueror 
planted  upon  their  proud  necks  will  not  sweeten  their 
tempers,  and  their  defiant  and  treacherous  nature  will 
seek  to  revenge  itself  in  murders,  assassinations,  and 
all  underhand  methods  of  venting  a  spite  which  they 
dare  not  manifest  by  open  war,  and  in  driving  out 
of  their  borders  all  loyal  men.  To  suppose  that  a 
Union  sentiment  will  remain  in  any  considerable 
number  of  men,  among  a  people  who  have  strained 
every  nerve  and  made  every  sacrifice  to  destroy  the 
Union,  indicates  dishonesty,  insanity,  or  feebleness  of 
intellect. 

The  slaveholding  inhabitants  of  the  conquered  dis- 
tricts will  begin  by  claiming  the  right  to  exercise  the 
powers  of  government,  and,  under  their  construction 
of  State  rights,  to  get  control  of  the  lands,  personal 
property,  slaves,  free  blacks,  and  poor  whites,  and  a 
legalized  power,  through  the  instrumentality  of  State 
laws,  made  to  answer  their  own  purposes,  to  oppose 
and  prevent  the  execution  of  the  constitution  and  laws 
of  the  United  States,  within  the  districts  of  country 
inhabited  by  them. 

Thus,  for  instance,  when  South  Carolina  shall  have 
ceased  fighting,  she  will  say  to  the  President,  "  We 
have  now  laid  down  our  arms  ;  we  submit  to  the 
authority  of  the  United  States  government.  You  may 
restore  your  custom-houses,  your  courts  of  justice,  and, 
if  we  hold  any  public  property,  we  give  it  up ;  we  now 
have  chosen  senators  and  representatives  to  Congress, 
and  demand  their  admission,  and  the  full  establishment 


-•»'_  RUC0NSTR1  CTION    OP   THE    UNION. 

df  all  our  Male  rights  and  our  restoration  to  all  our  for- 
mer pri\  ilegea  and  Immunities  as  citizens  of  the  United 
States." 

This  demand  is  made  by  men  who  are  traitors  in 
heart  ;  men  who  hate  and  despise  the  Union  ;  men  who 
nevei  had  a  patriotic  sentiment;  men  who.  if  they 
could,  would  hang  every  friend  of  the  government. 
But,  for  the  sake  of  getting  power  into  their  own  hands 
by  our  concession,  which  they  could  not  obtain  by 
fighting,  and,  for  the  sake  of  avoiding  the  penalty  of 
their  national  crimes,  they  will  demand  restoration  to 
the  Union  under  the  guise  of  claiming  State  rights. 

CONSEQUENCES  OF  BEING   OUTWITTED  BY   REBELS. 

What  will  he  the  consequence  of  yielding  to  this 
demand  '.' 

Our  public  enemy  will  gain  the  right  of  managing 
their  affairs  according  to  their  will  and  pleasure,  and 
in  it  according  to  the  will  and  pleasure  of  the  people  of 
the  United  States. 

They  will  he  enabled,  by  the  intervention  of  their 
Mate  laws  and  State  courts,  to  put  and  maintain  them- 
selves in  effectual  and  perpetual  opposition  to  the  laws 
and  constitution  of  the  United  States,  as  they  have 
done  for  thirty-five  years  past.  They  will  have  the 
power  to  pass  such  local  laws  as  will  effectually  exclude 
from  the  -lave  States  all  northern  men,  all  soldiers,  all 
free  blacks,  and  all  persons  and  things  which  shall  be 
inconsistent  with  the  theory  of  making  slavery  the 
corner-stone  of  their  local  government ;  and  they  may 
make  slavery  perpetual,  in  violation  of  the  lawrs  of  the 
United    States    and    proclamations    of    the    President. 


RECONSTRUCTION    OF    THE    UNION.  233 

They  may  continue  the  enforcement  of  those  classes 
of  laws  against  free  speech  and  freedom  of  the  press, 
which  will  forever  exclude  popular  education,  and  all 
other  means  of  moral,  social,  and  political  advancement. 
They  may  send  back  to  Congress  the  same  traitors 
and  conspirators  who  have  once  betrayed  the  country 
into  civil  war,  and  who  will  thwart  and  embarrass  all 
measures  tending  to  restore  the  Union  by  harmonizing 
the  interests  and  the  institutions  of  the  people,  and  so, 
being  introduced  into  camp,  as  the  wrooden  horse  into 
Troy,  they  will  gain  by  fraud  and  treason  that  which 
the}^  could  not  achieve  by  feats  of  arms.  The  insanity 
of  State  rights  doctrines  will  be  nourished  and  strength- 
ened by  admitting  back  a  conquered  people  as  our 
equals,  and  its  baleful  influences  cannot  be  estimated  ! 

To  satisfy  them,  the  solemn  pledge  of  freedom  offered 
to  colored  citizens  by  Congress  and  by  the  Proclama- 
tion, must  be  broken,  and  the  country  and  the  govern- 
ment must  be  covered  with  unspeakable  infamy,  so 
that  even  foreign  nations  might  then  justly  consider  us 
guilty  of  treachery  to  the  cause  of  civilization  and  of 
humanity. 

Suppose,  to-day,  the  rebellion  quelled,  and  the  ques- 
tion put,  Will  you  give  to  your  enemy  the  power  of 
making  your  laws? 

Eastern  Virginia,  Florida,  and  Louisiana  are  now 
knocking  at  the  door  of  Congress  for  admission  into 
the  Union.  Men  come  to  Washington,  chosen  to  office 
by  a  handful  of  associates ;  elevated,  by  revolution, 
to  unaccustomed  dignity;  representing  themselves  as 
Union  men,  and  earnest  to  have  State  rights  bestow ed 
on  their  constituents. 

If  their  constituents  are  clothed  with  the  power 
30 


KM  ONSTRl  CTIOK    OF    I! ( i:    i  NION. 

to   constitute   a   State,   into   whose    hands   will    that 

I't'W  <.T     fell  '. 

Beware  of  committing  yourselves  to  the  fatal  doc- 
trine of  recognizing  the  existence  in  the  Union,  of 
States  which  have  been  declared  by  the  President's 
Proclamation  to  be  in  rebellion.  For,  by  this  new 
device  of  the  enemy,  this  new  version  of  the  poisonous 
Matt-  rights  doctrine,  the  secessionists  will  be  able  to 
gel  b;uk  by  fraud  what  they  failed  to  get  by  fighting. 
Do  not  permit  them,  without  proper  safe-guards,  to 
resume  in  your  counsels  in  the  Senate  and  in  the 
House  the  power  which  their  treason  has  stripped 
from  them. 

Do  not  allow  old  States,  with  their  constitutions  still 
unaltered,  to  resume  State  powers. 

Be  true  to  the  Union  men  of  the  south,  not  to  the 
designing  politicians  of  the  border  States.  The  rebel- 
lious States  contain  ten  times  as  many  traitors  as  loyal 
men.  The  traitors  will  have  a  vast  majority  of  the 
votes.  Clothed  with  State  rights  under  our  constitu- 
tion, they  will  crush  every  Union  man  by  the  irre- 
sistible power  of  their  legislation.  If  you  would  be 
true  to  the  Union  men  of  the  south,  you  must  not 
bind  them  hand  and  foot,  and  deliver  them  over  to 
their  bitterest  enemies. 

STATE  RIGHTS  IN  CIVIL  WAR. 

Beware  of  entangling  yourselves  with  th£  technical 
doctrine  of  forfeitures  of  State  rights,  as  such  doctrines 
admit,  by  necessary  implication,  the  operation  of  a  code 
of  laws,  and  of  corresponding  civil  rights,  the  existence 
of  which  you  deny. 

To  preserve   the   Union,  requires  the    enforcement 


RECONSTRUCTION    OF   THE   UNION.  235 

against   public   enemies  of  our  belligerent   rights  of 
civil  war. 

ATTITUDE  OF  THE  GOVERNMENT  IN  THE  BEGINNING  OF  THE  WAR 
TOWARDS  THE  REBELS,  AND  TOWARDS  LOYAL  MEN  IN  REBEL  DIS- 
TRICTS. 

When  the  insurrection  commenced  by  illegal  acts  of 
secession,  and  by  certain  exhibitions  of  force  against 
the  government,  in  distant  parts  of  the  country,  it  was 
supposed  that  the  insurgents  might  be  quelled,  and 
peace  might  be  restored,  without  requiring  a  large  mili- 
tary force,  and  without  involving  those  who  did  not 
actively  participate  in  overt  acts  of  treason. 

Hence  the  government,  relying  upon  the  patriotism 
of  the  people,  and  confident  in  its  strength,  exhibited  a 
generous  forbearance  towards  the  insurrection. 

When,  at  last,  75,000  of  the  militia  were  called  out, 
the  President,  still  relying  upon  the  Union  sentiment 
of  the  South,  announced  his  intention  not  to  interfere 
with  loyal  men,  but,  on  the  contrary,  to  regard  their 
rights  as  still  under  the  protection  of  the  constitution 
The  action  of  Congress  was  in  accordance  with  this 
policy.  The  war  waged  by  this  government  was  then 
a  personal  war,  a  war  against  rebels ;  a  war  prosecuted 
in  the  hope  and  belief  that  the  body  of  the  people  Wen- 
still  friendly  to  the  Union,  who,  temporarily  overborne, 
would  soon  right  themselves  by  the  aid  of  the  army. 
Hence  Congress  declared,  and  the  President  proclaimed, 
that  it  was  not  their  object  to  injure  loyal  men,  or  to 
interfere  with  their  rights  or  their  domestic  institutions. 

THE  PROGRESS  OF  EVENTS  CHANGED  THE  CHARACTER  OF  THE  WAK. 
AND  REQUIRED  THE  USE   OF   MORE   EFFECTIVE   WAR    POWERS. 

This  position  of  the  government  towards  the  rebel- 
lious   States    was    forbearing,   magnanimous,   and  just 


RE00N8TKI  CTION    OF   THB    UNION. 

while  the  citizens  thereof  were  generally  loyal.  But 
the  revolution  Bwepl  onward.  The  entire  circle  of  the 
southern  States  abandoned  the  Union,  and  carried  with 
them  all   the   border  States  within   their  influence  <>r 

control. 

Saving  sel  up  a  new  government  for  themselves; 
having  declared  war  against  us;  having  sought  foreign 
aid;  having  passed  acts  of  non-intercourse;  having 
sei/ed  public  property,  and  made  attempts  to  invade 
States  which  refused  to  serve  their  cause;  having  raised 
and  maintained  large  armies  and  an  incipient  navy; 
assuming,  in  all  respects,  to  act  as  an  independent,  hos- 
tile nation,  at  war  with  the  United  States  —  claiming 
belligerent  rights  as  an  independent  people  alone  could 
claim  them,  and  offering  to  enter  into  treaties  of  alli- 
ance with  foreign  countries  and  treaties  of  peace  with 
ours  —  under  these  circumstances  they  were  no  longer 
merely  insurgents  and  rebels,  but  became  a  belligerent 
public  enemy.  The  war  was  no  longer  against  "cer- 
tain persons"  in  the  rebellious  States.  It  became  a 
territorial  war ;  that  is  to  say,  a  wrar  by  all  persons 
situated  in  the  belligerent  territory  against  the  United 
States. 

CONSEQUENCES  RESULTING   FROM  CIVIL  TERRITORIAL   WAR. 

If  we  were  in  a  war  with  England,  every  Englishman 
would  become  a  public  enemy,  irrespective  of  his  per- 
sonal feelings  towards  us.  However  friendly  he  might 
be  towards  America,  his  ships  on  the  sea  would  be 
liable  to  capture,  himself  would  be  liable  to  be  killed 
in  battle,  or  his  property,  situated  in  this  country,  would 
he  subject  to  confiscation. 

By  a  similar  rule  of  the  law  of  nations,  whenever 


RECONSTRUCTION    OF   THE    UNION.  237 

two  nations  are  at  war,  every  subject  of  one  belligerent 
nation  is  a  public  enemy  of  the  other. 

An  individual  may  be  a  personal  friend,  and  at  the 
same  time  a  public  enemy,  to  the  United  States.  The 
law  of  war  defines  international  relations. 

When  the  civil  war  in  America  became  a  territorial 
war,  every  citizen  residing  in  the  belligerent  districts 
became  a  public  enemy,  irrespective  of  his  private  sen- 
timents, whether  loyal  or  disloyal,  friendly  or  hostile, 
Unionist  or  secessionist,  guilty  or  innocent. 

As  public  enemies,  the  belligerents  have  claimed  to 
be  exchanged  as  prisoners  of  war,  instead  of  admit- 
ting our  right  to  hang  them  as  murderers  and  pirates. 
As  public  enemies,  they  claim  the  right  to  make  war 
upon  us,  in  plain  violation  of  many  of  the  obligations 
they  would  have  admitted  if  they  acknowledged  the 
obligations  or  claimed  the  protection  of  our  consti- 
tution. 

If  they  had  claimed  any  State  rights,  under  our 
constitution,  they  would  not  have  violated  every  one 
of  the  provisions  thereof  limiting  the  powers  of  States. 
Asserting  no  such  rights,  they  claim  immunity  from  all 
obligations  as  States,  or  as  a  people,  to  this  govern- 
ment or  to  the  United  States. 

WHEN   DID   THE   REBELLION   BECOME   A  TERRITORIAL  WAR? 

This  question  has  been  settled  by  the  Supreme  Court 
of  the  United  States,  in  the  case  of  the  Hiawatha, 
decided  on  the  9th  of  March,  18G3.  In  that  case, 
which  should  be  read  and  studied  by  every  citizen  of 
the  Union,  the  members  of  the  court  differed  in  opinion 
as  to  the  time  when  the  war  became  territorial.  The 
majority  decided  that,  when  the  fact  of  general  hostili- 


\     OP    Till.    I  \I<>\. 

existed,  the  war  was  territorial,  and  the  Supreme 
Court  was  bound  to  iak<>  judicial  cognizance  thereof 
The  minority  argued  that,  a-  Congress  alone  had  power 
to  declare  war,  so  Congress  alone  has  power  to  recog- 
nize tin1  existence  of  war:  and  they  contended  that  it 
was  not  until  the  Art  of  Congress  of  July  13,  1861, 
commonly  called  the  Non-intercourse  Act,  that  a  state 
of  civil,  territorial  war  was  Legitimately  recognized.  All 
the  judges  agree  in  the  position  "  that  since  July  13, 
L861,  there  has  existed  between  the  United  States  and 
the  Confederate  States,  civil,  territorial  war." 

WHAT    AKi:   THE    RIGHTS   OF  THE   PUBLIC   ENEMY   SINCE   THE    REBEL- 
LION   BECAME   A   TERRITORIAL  CIVIL    WAR. 

The  Supreme  Court  have  decided,  in  the  case  above 
named,  in  effect:*     "That  since  that  time  the  United 


•  If  this  decision  be  restricted  to  its  most  technical  and  narrow  limits,  the 
only  point  actually  decided  was,  that  the  captured  vessels  and  cargoes  were 
lawful  prize.  The  parties  before  the  court  are  alone  bound  by  the  judgment. 
Viewed  in  like  manner,  the  only  point  decided  in  the  case  of  Dred  Scott 
was,  that  the  court  had  no  jurisdiction  of  the  matter.  Nevertheless,  learned 
judges  have  taken  occasion  to  express  opinions  upon  legal  or  political  ques- 
tions. Their  opinions  are  of  great  importance,  not  because  they  are  or  are 
not  technical  decisions  of  points  in  issue,  but  because  they  record  the  delib- 
erate judgment  of  those  to  whom  the  same  questions  will  be  referred  for 
final  determination.  The  judge  who  has  pronounced  an  extra-judicial  opinion, 
and  has  placed  it  upon  the  records  of  the  court,  is  not,  it  may  be  said, 
bound  to  follow  it ;  but  it  is  equally  true,  that  the  court  is  never  bound  to 
follow  its  previous  most  solemn  "  decisions.  "  These  decisions  may  be,  and 
often  have  been,  modified,  overruled,  or  disregarded  by  the  same  court  which 
pronounced  them.  If  the  members  of  a  judicial  tribunal,  though  differing 
upon  minor  questions,  agree  upon  certain  fundamental  propositions,  it  is 
worse  than  useless  to  deny  that  these  propositions,  even  though  not  "  techni- 
cally decided,"  have  the  authoritative  sanction  of  the  court.  The  unani- 
mous agreement  of  all  the  members  of  a  judicial  court  to  certain  principles, 
affords  to  the  community  as  satisfactory  evidence  of  their  views  of  the  law 
as  could  be  derived  from  a  decision  in  which  these  principles  were  technically 
the  points  in  controversy.     It  is  for  these  reasons  that  it  has  been  stated  in 


RECONSTRUCTION    OF   THE   UNION.  239 

States  have  full  belligerent  rights  against  all  persons 
residing  in  the  districts  declared  by  the  President's 
Proclamation  to  be  in  rebellion. " 

That  the  laivs  of  zvar,  "  whether  that  war  be  civil  or  inter 


qualified  language  "  that  the   Supreme  Court  have  decided  in  effect  "  the 
propositions  as  stated. 

To  show  wherein  all  the  judges  agree,  the  following  extracts  are  collected 
from  the  Decision  and  from  the  Dissenting  Opinion. 

EXTRACTS  FROM  THE   OPINION   OF   THE   COURT. 

"  As  a  civil  war  is  never  publicly  proclaimed  eo  nomine,  No    declaration 

,.  ...  ,      7         .   ,  •  e     .     •  of  war  is  neees- 

against   insurgents,  its    actual   existence   is   a  tact   in  our  gary  jn  ^^  0f 

domestic  history,  which  the  court  is  bound  to  notice  and  to  civl1  war- 
know.    The  true  test  of  its  existence,  as  found  in  the  writings  Test  of  its  ex- 
of  the  sages  of  the  common  law,  may  be  thus   summarily 
stated :    '  When  the  course  of  justice  is  interrupted  by  revolt, 
rebellion,  or  insurrection,  so  that  the  courts  of  justice  can- 
not be  kept  open,  CIVIL  war  exists,  and  hostilities  may 
be  prosecuted  on  the  same  footing  as  if  those  opposing  the  Rebels     to    be 
government  were  foreign  enemies  invading  the  land.'    See  e[£n  Invaders?'" 
2  Black  R.  667,  668. 

"  They  (foreign  nations)  cannot  ask  a  court  to  affect  a 
technical  ignorance  of  the  existence  of  a  yar,  which  all  the 
world  acknowledges  to  be  the  greatest  civil  war  known  in 
the  history  of  the  human  race,  and  thus  cripple  the  arm  of 
the  government,  and  paralyze  its  powers  by  subtle  definitions 
and  ingenious  sophisms.  The  law  of  nations  is  also  called 
the  law  of  nature.  It  is  founded  on  the  common  sense  as 
well  as  the  common  consent  of  the  world.  It  contains  no 
such  anomalous  doctrine,  as  that  which  this  court  is  now, 
for  the  first  time,  desired  to  pronounce,  to  wit,  '  that  insur- 
gents, who  have  risen  in  rebellion  against  their  sovereign, 
expelled  her  courts,  established  a  revolutionary  government, 
organized  armies,  and  commenced  hostilities,  are  not  enemies, 
because  they  are  traitors  ;  and  a  war  levied  on  the  govern- 
ment by  traitors,  in  order  to  dismember  and  destroy  it,  is  not 
a  tear  because  it  is  an  "  insurrection.  " 

Whether  the  President,  in  fulfilling  his  duties  as  command-  President    must 

,  .   P  ■  .  .  ,  •.?  i_    decide    whether 

er-in-chiet  in  suppressing  an  insurrection,  has  met  with  such  the  enemy  shall 

armed  hostile  resistance,  and  a  civil  war  of  such  alarming  pro-  JS,^™ 

portions,  as  will  compel  him  to  accord  to  them  the  character 


2  10  BLEOONSTRl  CTION    OF   THE    ONION. 

mveris    every   citizen   of  the  hostiU    State   into  a 
public   enemy,   ami   treats  him   accordingly,   whatever  may 
ba  n  his  previous  conduct. " 

That    all    thi'    riehtti   derived    from    the    laws   of   war 


mnai  f"i  of  belligerents,  is  a  question  to  be  decided  by  him,  and  this 
of  the  President,  court  must  I"  governed  by  tin'  decision  and  acts  of  the  polit- 
ical department  of  the  government  to  which  this  power 
was  intrusted.  He  must  determine  what  degree  of  force  the 
crisis  demands."  The  proclamation  of  blockade  is  of  itself 
official  and  conclusive  evidence  to  the  court  that  a  state  of 
war  existed  which  demanded  and  authorized  a  recourse  to 
such  a  measure,  under  the  circumstances  peculiar  to  the 
case. 
'  renl  right       "  The  right  of  one  belligerent,  not  only  to  coerce  the  other 

destruction  <>f  ''.'/  direct  force,  but  also  to  cripple  his  resources  by  the 
ly"  "i'hII1  kinds  se^zure  or  destruction  of  his  property,  is  a  necessary  result 
on  land  or  sea.  of  a  state  of  war.  Money  and  wealth,  the  products  of 
agriculture  and  commerce,  are  said  to  be  the  sinews  of 
war,  and  as  necessary  in  its  conduct  as  numbers  and  phys- 
ical force.  Hence  it  is,  that  the  laws  of  war  recognize  the 
right  of  a  belligerent  to  cut  these  sinews  of  the  power  of  the 
enemy  by  capturing  his  property  on  the  high  seas.  "  Page 
671. 

CONFISCATION. 
All  persons  re-       i(  All  persons  residing  within  this  territory  (seceded  States) 
•■vivlit  'district's  wnose  property  may  be  used   to  increase  the  revenues  of  the 
are  public  ene-  hostile  power,  are,  in  this  contest,   liable  to  be  treated  as 

mies,    and    their  * 

property    liable  enemies,  though  not  foreigners.     They  have  cast  off  their 
to  tie  captured.        7,      .  ,  ,  ,T     .  ,  ^ 

allegiance,  ana  made  war  on  their  government,  ana  are  none 

the   less    enemies    because   they   are   traitors. "      Opinion, 

page  674. 

EXTRACTS   FROM   TIIE   DISSENTING    OPINION. 
Public  war  cnti-       "  A  contest  by  force,  between  independent  sovereign  States, 
to*he°  rights  '<■/  's  caue(l  a  public  war  ;  and  when  duly  commenced,  by  procla- 
Kwragainsteach  mation  or  otherwise,  it  entitles  both  of  the  belligerent  parties 

to  all  the  rights  of  war  against  each  other,  and  as  respects 

neutral  nations.  "     Page  686,  687. 

conse-      "  The  legal  consequences  resulting  from  a  state  of  war 
quences  of  war, 


national  law 


and  will  be  found  described  in  every  approved  work  on  the 
subject  of  international  law." 


RECONSTRUCTION    OF    THE    UNION.  241 

may  now.  since  1861,  be  lawfully  and  constitutionally 

exercised 

rebellion. 


exercised    against  all   the   citizens  of  the   districts  in 


"The people  of the  two  countries  immediately  become  the  People    of.    the 

enemies  of  each  other,  &c.    .     .     .   All  the  property  of  the  become^^law8 

people  of  the  two  countries,  on  land  or  sea,  are  subject  to  enemies. 

capture  and  confiscation  by  the  adverse  party  as  enemies'  pro-  All       enemies' 

...  ,    .  ,.-  .  property  on  laud 

perty,  with  certain  quaimcations  as  it  respects   property  on  and  sea  is  subject 

land.     (Brown    vs.    U.    S,  8    Cranch,    110.)      All   treaties  conSion.  ^ 

between  the  belligerent   parties  are    annulled."      Page  677. 

"  This  great  and  pervading  change  in  the  existing  condi- 
tion of  a  country,  and  in  the  relation  of  all  her  citizens  or 
subjects,  external  and  internal,  is  the  immediate  effect  and 
result  of  a  state  of  war."     Page  688. 

"  In  the  case  of  a  rebellion,  or  resistance  of  a  portion  of  The  government 
the  people  of  a  country,  against  the  established  government,  "ivil  war?08™2* 
there  is  no  doubt,  if,  in  its  progress  and  enlargement,  the 
government  thus  sought  to  be  overthrown,  sees  fit,  it  may,  by 
the  competent  power,  recognize  or  declare  the  existence  of  a 
state  of  civil  war,  which  will  draw  after  it  all  the  conse-  Civil  war  draws 
quences  and  rights  of  war,  between  the  contending  parties,  rights    of   war, 
as  in  the  case  of  a  public  war,   Mr.   Wheaton  observes,   aford-'rfwar  '" 
speaking  of  civil  war  :    "  But  the  general  usage  of  nations 
regards  such  a  war  as  entitling  both  the  contending  parties  to 
all  the  rights  of  war,  as  against  each  other,  and  even  as 
respects  neutral  nations."     Page  688. 

"  Before  this  insurrection  against  the  established  govern- 
ment can  be  dealt  with  on  the  footing  of  a  civil  war,  within 
the  meaning  of  the  law  of  nations  and  the  Constitution  of 
the  United  States,  and  which  will  draw  after  it  belligerent 
rights,  it  must  be  recognized  or  declared  by  the  war-making 
power  of  the  government.  No  power  short  of  this  can  Civil  war  must 
change  the  legal  status  of  the  government,  or  the  relations  rongn^s'before 

of  its  citizens  from  that  of  peace  to  a  state  of  war,  or  briny;  !!  05n,rr?w„?fter 
1  o  it  full    belliger- 

into  existence  all  those  duties  and  obligations  of  neutral  ent  rights. 
third  parties,  growing  out  of  a  state  of  war.  The  war  power 
of  the  government  must  be  exercised  before  this  changed 
condition  of  the  government  and  people,  and  of  neutral  third 
parties,  can  be  admitted.  There  is  no  difference  in  this  re- 
spect between  a  civil  or  a  public  war."    Page  689. 

31 


2  I-  ft]  0ON8TR1  CTION    OP    PHB    ONION, 

RIGHTS  OF  REBELS  i£  PERSONS,  18  CITIZRN8  OF  BTATB8,  \M>  AS 
BUBJECTS  OF  mm  UNITED  STATES,  \i:i  .  ACCORDING  TO  THE  CON- 
BTIT1   HON,    i"   Bl     -I   DTLEO    Bl     PHB    LAWS   OF    WAR. 

Such  being  the  law  of  fche  Land,  as  declared  by  the 
Supreme  Court,  in  order  to  ascertain  whal  are  1 1 » *  -  legal 
or  constitutional  rights  of  public  enemies,  we  have  only 


•  'nil  w:\rnt t.i.'h        '•  It  must  he  a  war  m  a  legal  sense    (in  the  sense  of  the 

lenoes  oJ  l*w  of  nations,  and  of  the  Constitution  of  the  United  States) 

rtU  when  to  attachto  it  all  the  consequences  that  belong  to  belligerent 

recognized  rights.     Instead,    therefore,    of  inquiring    after   armies  and 
by  Coi:  '  '  . 

navies,  and   victories  lost  and  won,  or  organized   rebellion 

against  the  general  government,  the  inquiry  should  be  into 
the  law  of  nations,  and  into  the  municipal  and  fundamental 
laws  of  the  government.     For  we  find  there,  that  to  consti- 
tute  a  civil  war,  in  the   sense   in  which  we   are  speaking, 
before  it  can  exist  in  contemplation  of  law,  it  must  be  recog- 
nized or  declared  by  the  sovereign  power  of  the  state ;  and 
which  sovereign  power,  by  our  Constitution,  is  lodged  in  the 
Congress  of  the  United  States.     Civil  war,  therefore,  under 
our   system    of  government,  can  exist   only  by   an   act  of 
Congress,  which  requires  the  assent  of  two  of  the  great  de- 
partments of  the  government,  the  executive  and  the  legis- 
lative."    Page  690. 
Civil    war   con-       "  The  laws  of  war,  whether  the  war  be  civil  or  inter  gentes, 
zon  of  the  hostile  as  we  have  seen,  convert  every  citizen  of  the  hostile  state 
mtoaj*       int0  a  public  enemy,  and  treats  him  accordingly,  whatever 
may  have  been  his  previous  conduct." 
Innocent      per-       "  Congress  alone    can   determine  whether  war  exists   or 
lawfully  be  pun-  should  be  declared.     And  until  they  have  so  acted,  no  citizen 
rafiscated  °^  ^u'  state  can  De  punished  in  his  person  or  property  unless 

nil's,  until  he  has  committed  some  offence  against  a  law  of  Congress, 
i '-as       has  °  .  . 

recognized        a  passed  before  the  act  was  committed,  which  made  it  a  crime 

war.  and  defined  the  punishment.     Until  then,  the  penalty  of 

confiscation  for  the  acts  of  others  with  which  he  had  no  con- 
cern, cannot  lawfully  be  inflicted." 

"By  the  Act  of  16  Geo.  III.,  1776,  all  trade  between  the 
colonies  and  Great  Britain  was  interdicted." 
Congress       did       "  From   this  time  the  war  (of  the  revolution)   became  a 
war  by  Act  of  territorial,  civil  war  between  the  contending  parties,  with  all 
y  13,  1801.        ^g  rights  of  war  known  to  the  law  of  nations." 

"  The  Act  of  Congress  of  July  13,  1861,  we  think  recog- 


RECONSTRUCTION    OF   THE   UNION.  243 

to  refer  to  the  settled  principles  of  the  belligerent  law 
of  nations  or  the  laws  of  war. 

Some  of  the  laws  of  wrar  are  stated  in  both  the  Opin- 
ions in  the  case  above  mentioned.  A  state  of  foreign 
war  instantly  annuls  the  most  solemn  treaties  between 
nations.     It  terminates  all  obligations  in  the  nature  of 


nized  a  state  of  civil  war  between  the  government  and  the 
Confederate  States,  and  made  it  territorial."    Page  695. 

"We  agree,  therefore,  that  the  Act  of  the  13th  of  July, 
1861,  recognized  a  state  of  civil  war  between  the  govern- 
ment and  the  people  of  the  States  described  in  that  Procla- 
mation (of  August  16,  1861).     Page  696. 

"  But  this  (the  right  of  the  President  to  recognize  a  state 
of  civil  war  as  existing  between  a  foreign  government  and 
its  colonies)  is  a  very  different  question  from  the  one  before 
us,  which  is,  whether  the  President  can  recognize  or  declare 
a  civil  war,  under  the  Constitution,  with  all  its  belligerent 
rights,  between  his  own  government  and  "a  portion  of  its  cit- 
izens in  a  state  of  insurrection.     That  power,  as  we  have  Courts    must 
seen,  belongs  to  Congress.     We  agree  when  such  a  war  is  cisiou  of  the  po- 
recognized,  or  declared  to  exist  by  the  war-making  power,    * ica  Powers- 
but  not  otherwise,  it  is  the  duty  of  courts  to  follow  the  decis- 
ion of  the  political  power  of  the  government."    Page  697. 

"No  civil  war  existed  between  this  government  and  the  Civil  war  did 
States  in  insurrection  till  recognized  by  the  Act  of  Congress  juiy  13,  1861,  so 
of  July  13,  1861.     The  President  does  not  possess  the  power,  Jj^g  ggjLjSjg 
under  the  Constitution,  to  declare  war,  or  recognize  its  exist-  rights. 
ence  within  the  meaning  of  the  law  of  nations,  which  carries 
with  it  belligerent  rights,  and  thus  change  the  country  and 
all  its  citizens  from  a  state  of  peace  to  a  state  of  war.     This 
power   belongs   exclusively  to  the  Congress    of  the  United 
States,  and  consequently  the   President   had   no  power  to 
set  on  foot  a  blockade  under  the  law  of  nations,  and  the 
capture  of  the  vessel  and  cargo  in  all  the  cases  before,  in 
winch  the  capture  occurred  before  the  \Zth  of  July,  1861, 
for  breach  of  blockade,  or  as   enemy's  property,  is  illegal 
and  void."     Page  699. 

Mr.  Chief  Justice  Taney  and  Messrs.  Justices  Catron 
and  Clifford  concurred  with  Mr.  Justice  Nelson  in  the 
Dissenting  Opinion. 


'2  1  |  ki:.  ONSTRl  I  HON    OF    mi:    i  NION, 

compacts  or  contracts,  at  the  option  of  the  party  obli 
gated  thereby.    It  destroys  nil  claims  of  one  belligerent 

upon  the  oihcr.  except  those  which  maj  be  sanctioned 
l.\  a  treaty  of  peace.  A  civil  territorial  war  has  the 
same  effect,  excepting  only  that  the  sovereign  may 
treat  the  rebels  as  subjects  as  well  as  belligerents. 
Hence  civil  war.  in  which  the  belligerents  have  In-come 
territorial  enemies,  instantly  annuls  all  rights  or  claims 
of  public  enemies  against  the  United  States,  under  the 
constitution  or  laws,  whether  thai  constitution  be  called 
a  compact,  a  treaty,  or  a  covenant,  and  whether  the 
parties  to  it  were  State-,  iii  their  sovereign  capacity,  or 
the  people  of  the  United  States,  as  individuals.  Any 
other  result  would  he  as  incomprehensible  as  it  would 
be  mischievous.  A  public  enemy  cannot  lawfully  claim 
the  right  of  entering  Congress  and  voting  down  the 
measure-  taken  to  subdue  him. 

Why  not?  Because  he  is  a  public  enemy;  because, 
by  becoming  a  public  enemy,  he  has  annulled  and  lost 
his  rights  in  the  government,  and  can  never  regain 
them  excepting  by  our  consent. 

STATIC    SIGHTS   TO    BE    REGAINED  ONLY    BY  OCR  CONSENT. 

If  the  inhabitants  of  a  large  part  of  the  Union  have, 
by  becoming  public  enemies,  surrendered  and  annulled 
their  former  rights,  the  question  arises,  Can  they  re- 
cover them'.'  Such  rights  cannot  he  regained  by  reason 
of  their  having  ceased  to  fight.  The  character  of  a 
public  enemj  having  once  been  stamped  upon  them 
by  the  laws  of  war.  remains  fixed  until  it  shall  have 
been,  by  our  consent,  removed.  To  stop  fighting  does 
not  make  them  cease  to  be  public  enemies,  because 
they  may  have  laid  down  their  arms  for  want  of  powder 


RECONSTRUCTION    OF    THE    UNION.  245 

not  for  want  of  will.  Peace  does  not  restore  the  noble 
dead  who  have  fallen  a  sacrifice  to  treason.  Nor  does 
it  revive  the  rights  once  extinguished  by  civil,  territo- 
rial war.  The  land  of  the  Union  belongs  to  the  people 
of  the  United  States,  subject  to  the  rights  of  individual 
ownership.  Each  person  inhabiting  those  sections  of 
the  country  declared  by  the  President's  Proclamation 
to  be  in  rebellion,  has  the  rig&t  to  what  belongs  to  a 
public  enemy,  and  no  more.  He  can  have  no  right  to 
take  any  part  in  our  government.  That  right  does  not 
belong  to  an  enemy  of  the  country  while  he  is  waging 
war,  or  after  he  has  been  subdued.  A  public  enemy 
has  a  right  to  participate  in,  or  to  assume  the  govern- 
ment of  the  United  States,  only  when  he  has  conquered 
the  United  States.  We  find  in  this  well-settled  doctrine 
of  belligerent  law  the  solution  of  all  questions  in  rela- 
tion to  State  rights.  After  the  inhabitants  of  a  district 
have  become  public  enemies  they  have  no  rights,  either 
State  or  National,  as  against  the  United  States.  They 
are  belligerents  only,  and  have  left  to  them  only  bel- 
ligerent rights. 

STATE   RIGHTS   ARE   NOT   APPURTENANT   TO   LAND. 

Suppose  that  all  the  inhabitants  living  in  South  Caro- 
lina should  be  swept  off,  so  that  solitude  should  reign 
throughout  its  borders,  unbroken  by  any  living  thing; 
would  the  State  rights  of  South  Carolina  still  exist  as 
attached  to  the  land  itself?  Can  there  be  a  sovereignty 
without  a  people,  or  a  State  without  inhabitants  ?  State 
rights,  so  far  as  they  concern  the  Union,  are  the  rights 
of  persons,  as  members  of  a  State,  in  relation  to  the 
general  government;  and  when  the  person  has  become 
a  public   enemy,  then  he  loses   all   rights   except   the 


L'  16  in  I  0N8TR1  l  ri"\    0]     PHB    I  N 

rights  of  war.  Ami  when  aU  the  inhabitants  have  (by 
engaging  in  civil,  territorial  war)  become  public  ene- 
Diies,  it  is  tlic  same,  in  Legal  effect,  as  though  the  inhab- 
itants  had  been  annihilated.  So  far  as  this  govemmenl 
is  concerned,  civil,  territorial  war  obliterates  from  dis- 
tricts in  rebellion  all  lines  of  States  or  comities;  the 
onlv  lines  recognized  by  war  are  the  lines  which  sep- 
arate us  from  a  public  unemy. 

FORFEITURE  NOT  CLAIMED  —  THE  RIGHT  OF  SECESSION  NOT  AD- 
MlllKI',  SINCE  CITIZENS  MAI  BE  DEEMED  BELLIGERENTS  AND 
SUBJECTS. 

1  ilo  not  place  reliance  upon  the  common  law  doc- 
trine of  forfeitures  of  franchises  as  applicable  to  this 
revolution,  for  forfeiture  can  be  founded  only  upon  an 
admission  of  the  validity  of  the  act  on  which  forfeiture 
is  founded.  Nor  does  the  belligerent  law  of  civil,  terri- 
torial war.  whereby  a  public  enemy  loses  his  rights  as  a 
citizen,  admit  the  right  of  secession.  It  is  not  any  vote 
or  law  of  secession  that  makes  an  individual  a  public 
enemy.  A  person  may  commit  heinous  offences  against 
municipal  law,  and  commit  acts  of  hostility  against  the 
government,  without  being  a  public  enemy.  To  be  a 
personal  enemy,  is  not  to  be  a  public  enemy  to  the 
country,  in  the  eye  of  belligerent  or  international  law. 
Whosoever  engages  in  an  insurrection  is  a  personal 
enemy,  but  it  is  not  until  that  insurrection  has  swelled 
into  territorial  war  that  he  becomes  a  public  enemy. 
It  must  also  be  remembered  that  the  right  of  secession 
is  not  .conceded  by  enforcement  of  belligerent  law, 
since  in  civil  war  a  nation  has  the  right  to  treat  its 
citizens  either  as  subjects  or  belligerents,  or  as  both. 
Hence,  while    belligerent   law  destroys   all  claims  of 


RECONSTRUCTION    OF   THE   UNION.  247 

subjects  engaged  in  civil  war,  as  against  the  parent 
government,  it  does  not  release  the  subject  from  his 
duties  to  that  government.  By  war,  the  subject  loses 
his  rights,  but  does  not  escape  his  obligations.  The 
inhabitants  of  the  conquered  districts  will  thus  lose 
their  right  to  govern  us,  but  will  not  escape  their  obli- 
gations to  obey  us.  Whatever  rights  are  left  to  them 
besides  the  rights  of  war,  will  be  such  as  we  choose  to 
allow  them.  It  is  for  us  to  dictate  to  them,  not  for  them 
to  dictate  to  us,  what  privileges  they  shall  enjoy. 

THE   PLEDGE  OF  THE   COUNTRY  TO  ITS   SOLDIERS,   ITS  CITIZENS,  AND 
ITS   SUBJECTS,   MUST   BE   KEPT   INVIOLATE. 

Among  the  war  measures  sanctioned  by  the  Presi- 
dent, to  which  he  has,  more  than  once,  pledged  his 
sacred  honor,  and  which  Congress  has  enforced  by 
solemn  laws,  is  the  liberation  of  slaves.  The  govern- 
ment has  invited  them  to  share  the  dangers,  the  honor, 
and  the  advantages  of  sustaining  the  Union,  and  has 
pledged  itself  to  the  world  for  their  freedom.  Whatever 
disasters  may  befall  our  arms,  whatever  humiliation 
may  be  in  store  for  us,  it  is  earnestly  hoped  that  we 
may  be  saved  the  unfathomable  infamy  of  breaking 
the  nation's  faith  with  Europe,  and  with  colored  citizens 
and  slaves  in  the  Union. 

If  the  rebellious  States  shall  attempt  to  return  to  the 
Union  with  constitutions  guaranteeing  the  perpetuity 
of  slavery,  if  the  laws  of  these  States  shall  be  again 
revived  and  put  in  force  against  free  blacks  and  slaves, 
we  shall  at  once  have  reinstated  in  the  Union,  in  all 
its  force  and  wickedness,  that  very  curse  which  has 
brought  on  the  war  and  all  its  terrible  train  of  suffer- 
ings.    The  war  is  fought  by  slaveholders  for  the  per« 


2  IS  &BC0N8TR1  CTION    OP   THE    UNION. 

petuity  of  slavery.  Shall  we  band  over  to  them,  at 
the  end  of  the  war,just  what  they  have  been  fighting 

for'.'  Shall  all  our  blood  ami  treasure  be  spilled  use- 
lessly upon  the  ground  ?  Shall  the  countrv  not  protect 
itself  againsl  the  evil  which  has  caused  all  our  woes? 
Will  Mm  breathe  new  life  into  the  strangled  serpent, 
when,  without  your  aid.  he  will  perish'.' 

[f  you  concede  Stale  rights  to  your  enemies,  what 
security  can  you  have  that  traitors  will  not  pass  State 
law-  which  will  render  the  position  of  the  blacks  intol- 
erable, or  reduce  them  ail  to  slavery? 

Would  it  be  honorable  on  the  part  of  the  United 
States  to  free  these  men.  and  then  hand  them  over  to 
the  tender  mercy  of  slave  laws? 

Will  it  he  possible  that  State  slave  laws  should  exist 
and  be  enforced  by  slave  States  without  overriding  the 
rights  guaranteed  by  the  United  States  law  to  men, 
irrespective  of  color,  in  the  slave  States? 

Will  you  run  the  risk  of  these  angry  collisions  of 
State  and  National  laws  while  you  have  the  remedy 
and  antidote  in  your  own  hands? 

PLAN    OK   RECONSTRUCTION   RECOMMENDED. 

One  of  two  things  should  be  done  in  order  to  keep 
faith  with  the  country  and  save  us  from  obvious  peril. 
Allow  the  inhabitants  of  conquered  territory  to  form 
themselves  into  States,  only  by  adopting  constitutions 
such  as  will  forever  remove  all  cause  of  collision  with 
tic-  United  States,  by  excluding  slavery  therefrom,  or 
continue  military  government  over  the  conquered  dis- 
trict, until  there  shall  appear  therein  a  sufficient  number 
of  loyal  inhabitants  to  form  a  republican  government, 


RECONSTRUCTION    OP   THE    UNION.  249 

which,  by  guaranteeing  freedom  to  all,  shall  be  in  ac- 
cordance with  the  true  spirit  of  the  constitution  of  the 
United  States.  These  safeguards  of  freedom  are  requi- 
site to  render  permanent  the  domestic  tranquillity  of 
the  country  which  the  constitution  itself  was  formed  to 
secure,  and  which  it  is  the  legitimate  object  of  this 
war  to  maintain. 


32 


260  RBOONBTRl  CTION    OF    THE    ONION. 


EXTRACT    FUnM    Till:    lMlKSIDKXT'S   MESSAGE. 


EMANCIPATION    AND    US    RESULTS. 

Win  n  Congress  assembled  n  year  ago,  the  war  had  already  lasted  nearly 
twentv   months,  and   there  had   been   many  conflicts  on  both   land   and   sea, 

with  varying  results. 

The  rebellion  had  been  pressed  back,  into  reduced  limits,  yet  the  tone  of 
public  feeling  at  home  and  abroad  was  not  satisfactory.  With  other  Bigns, 
the  popular  election,  then  just  past,  indicated  uneasiness  among  ourselves, 
which,  amid  much  that  was  cold  and  menacing,  the  kindest  words  coming 
from  Europe  wire  uttered  in  accents  of  pity  that  we  were  too  blind  to  sur- 
render a  hopeless  cause. 

Our  commerce  was  suffering  greatly  by  a  few  armed  vessels,  built  upon 
and  furnished  from  foreign  shores,  and  were  threatened  with  such  additions 
from  the  same  quarter  as  would  sweep  our  trade  from  the  sea  and  raise  our 
blockade.  We  had  failed  to  elicit  from  European  governments  any  thing 
hopeful  on  this  subject. 

The  preliminary  Emancipation  Proclamation,  issued  in  September,  was 
running  it-  assigned  period  to  the  beginning  of  the  new  year.  A  month 
later  the  final  proclamation  came,  including  the  announcement  that  colored 
men,  of  suitable  condition,  would  be  received  in  the^war  service. 

The  policy  of  emancipation  and  of  employing  black  soldiers  give  to  the 
future  a  new  aspect,  about  which  hope,  and  fear,  and  doubt  contended  in 
uncertain  conflict. 

According  to  our  political  system,  as  a  matter  of  civil  administration,  the 
general  government  had  no  lawful  power  to  effect  emancipation  in  any 
State,  and  for  a  long  time  it  had  been  hoped  that  the  rebellion  could  be 
suppressed  without  resorting  to  it  as  a  military  measure. 

It  was  all  the  while  deemed  possible  that  the  necessity  for  it  might  come, 
and  that  if  it  should,  the  crisis  of  the  contest  would  then  be  presented.  It 
came ;  and,  as  was  anticipated,  it  was  followed  by  dark  and  doubtful  days. 

Eleven  months  having  now  passed,  we  are  permitted  to  take  another 
review.  The  rebel  borders  are  pressed  still  further  back,  and  by  the  com- 
plete opening  of  the  Mississippi,  the  country  dominated  by  the  rebellion  is 
divided  into  distinct  parts,  with  no  practical  communication  between  them. 
Tennessee  and  Arkansas  have  been  cleared  of  insurgents,  and  influential 
citizens  in  each,  owners  of  slaves,  and  advocates  of  slavery  at  the  begin- 
ning of  the  rebellion,  now  declare  openly  for   emancipation   in   their  re- 


RECONSTRUCTION    OF    THE    UNION.  251 

spective  States ;  and  of  those  States  not  included  in  the  emancipation  proc- 
lamation, Maryland  and  Missouri,  neither  of  which,  three  years  ago,  would 
tolerate  restraint  upon  the  extension  of  slavery  into  territory,  only  dispute 
now  as  to  the  best  mode  of  removing  it  within  their  own  limits. 

Of  those  who  were  slaves  at  the  beginning  of  the  rebellion,  full  one 
hundred  thousand  are  now  in  the  United  States  military  service,  about  one 
half  of  which  number  actually  bear  arms  in  the  ranks,  thus  giving  the 
double  advantage  of  taking  so  much  labor  from  the  insurgent  cause,  and 
supplying  the  places  which  otherwise  must  be  filled  with  so  many  white 
men.  So  far  as  tested,  it  is  difficult  to  say  that  they  are  not  as  good  soldiers 
as  any. 

No  servile  insurrection  or  tendency  to  violence  or  cruelty  has  marked  the 
measures  of  emancipation  and  arming  the  blacks. 

These  measures  have  been  much  discussed  in  foreign  countries,  and  con- 
temporary with  such  discussion  the  tone  of  public  sentiment  there  is  much 
improved.  At  home  the  same  measures  have  been  fully  discussed,  sup- 
ported, criticised,  and  denounced,  and  the  annual  elections  following  are 
highly  encouraging  to  those  whose  official  duty  it  is  to  bear  the  country 
through  this  great  trial.  Thus  we  have  the  new  reckoning.  The  crisis 
which  threatened  to  divide  the  friends  of  the  Union  is  past. 

RECONSTRUCTION. 

Looking  now  to  the  present  and  future,  and  with  reference  to  a  resump- 
tion of  the  national  authority  with  the  States  wherein  that  authority  has 
been  suspended,  I  have  thought  fit  to  issue  a  Proclamation,  a  copy  of  which 
is  herewith  transmitted.  On  examination  of  this  proclamation  it  will  appear, 
as  is  believed,  that  nothing  is  attempted  beyond  what  is  amply  justified  by 
the  Constitution  ;  true,  the  form  of  an  oath  is  given,  but  no  man  is  coerced 
to  take  it.  The  man  is  only  promised  a  pardon  in  case  he  voluntarily  takes 
the  oath. 

The  Constitution  authorizes  the  executive  to  grant  or  withhold  the  par- 
don at  his  own  absolute  discretion,  and  this  includes  the  power  to  grant  on 
terms,  as  is  fully  established  by  judicial  and  other  authorities  ;  it  is  also 
proposed  that  if  in  any  of  the  States  named  a  State  government  shall  be,  in 
the  mode  prescribed,  set  up,  such  governments  shall  be  recognized  and 
guaranteed  by  the  United  States,  and  that  under  it  the  State  shall,  on  the 
constitutional  conditions,  be  protected  against  invasion  and  domestic 
violence. 

The  constitutional  obligation  of  the  United  States  to  guarantee  to  every 
State  in  the  Union  a  republican  form  of  government,  and  to  protect  the 
State  in  the  cases  stated,  is  explicit  and  full. 

But  why  tender  the  benefits  of  this  provision  only  to  a  State  government 
set  up  in  this  particular  way  ?  This  section  of  the  Constitution  contem- 
plates a  case  wherein  the  element   within   a  State  favorable   to   republican 


•_'  >2  :i  '  HON     OF    THE     I  NION. 

nicni   in  the  Union  ma)   be  too  feeble  for  an  opposite  and   hostile 
element  external  to  or  even  within  the  State,  and  such  arc  precisely  the 
uith  which  we  are  now  dealing. 
An  attempt  to  'ate  government,  eon- 

•ating  part  from  the  very  element  against 

hostility  and  violence  it  is  to  be  protected,  is  simply  absurd. 

There  must  be  a  tesl  bj  which  to  separate  the  opposing  elements  so  as  to 

build  only  from  the  Boun  1,  and  that  test   is  a  sufficiently  liberal  one  which 

will  make  a  swom  recantation  of  his  former 

unsoundness  ;  but  it'  it  be  proper  to  require  as  a  u^\  of  admission  to  the 

political  body  an  oath  of  allegiance  to  the  Constitution  of  the  United  States 

and  to  the  Union  under  it,  why  not  also  to  the  laws  and  proclamations  in 

.'/  ■' 
•  laws  and  proclamations  i  led  and  put  forth  for  the  purpose 

././  in  the  suppression  of  the  rebellion.     'J'<>  give  them  their  fullest 
■here  had  to  be  a  pledge  for  their  maintenance.     In  my  judgment, 

they  have  aided,  and  will  further  aid,  the  cause  for  which  they  were  intended. 

To  now  abandon  them,  would  be  not  only  to  relinquish  a  lever  of  power, 

but  would  also  be  a  cruel  and  astounding  breach  of  faith.     I  may  add  at 

this  point,  that  while  I  remain  in  my  present  position,  1  shall  not  attempt 
to  retract  or  modify  the  emancipation  proclamation,  nor  shall  I  return  to 
/  any  person  who  is  free  by  the  terms  of  that  proclamation,  or  by  any 
of  the  acts  of  Congress. 

For  these  and  other  reasons  it  is  thought   best  that  support  of  these 

:res  shall  be  included  in  the  oath,  and  it  is  believed  that  the  Executive 

may  lawfully  claim  it  in  return  for  pardon  and  restoration  of  forfeited  rights, 

which  he  has  clear  constitutional  power  to  withhold  altogether,  or  grant 

upon  the  terms  he  shall  deem  wisest  for  the  public  interest. 

It  should  be  observed,  also,  that  this  part  of  the  oath  is  subject  to  the 
modifying  and  abrogatory  power  of  legislation  and  Supreme  Judicial 
decisions.* 

The  proposed  acquiescence  of  the  National  Executive  in  any  reasonable 
temporary  State  arrangement  for  the  freed  people,  is  made  with  the  view  of 
possibly  modifying  the  confusion  and  destitution  which  must,  at  best,  attend 
all  classes  by  a  total  revolution  of  labor  throughout  whole  States. 

It  is  hoped  that  the  already  deeply  afflicted  people  in  those  States  may 
be  somewhat  more  ready  to  give  up  the  cause  of  their  affliction,  if  to  this 
extent  this  vital  matter  be  left  to  themselves,  while  no  power  of  the  national 
executive  to  prevent  an  abuse  is  abridged  by  the  proposition. 

The  suggestion  in  the  proclamation  as  to  maintaining  the  political  frame- 
work of  the  States  on  what  is  called  reconstruction,  is  made  in  the  hope  that 
it  may  do  good  without  danger  of  harm  ;  it  will  save  labor  and  avoid   great 

*  It  mu=t  not  be  forgotten,  that  on  purely  political  question^  the  Supreme  Court  is 
bound  to  follow  the  decisions  of  the  executive  or  legislative  departments  of  government. 


RECONSTRUCTION     OF    THE    UNION.  253 

confusion  ;  but  why  any  proclamation  now  upon  this  subject  ?  This  ques- 
tion is  beset  with  the  conflicting  views  that  the  step  might  be  delayed  too 
long  or  be  taken  too  soon.  In  some  States  the  elements  for  resumption 
seem  ready  for  action,  but  remain  inactive,  apparently  for  want  of  a  rally- 
ing point  —  a  plan  of  action.  Why  shall  A  adopt  the  plan  of  B,  rather 
than  B  that  of  A  ;  and  if  A  and  B  should  agree,  how  can  they  know  but 
that  the  general  government  here  will  reject  their  plan  ?  By  the  Procla- 
mation a  plan  is  presented,  which  may  be  accepted  by  them  as  a  rallying 
point,  and  which  they  are  assured  in  advance  will  not  be  rejected  here. 
This  may  bring  them  to  act  sooner  than  they  otherwise  would. 

The  objections  to  a  premature  presentation  of  a  plan  by  the  National 
Executive  consists  in  the  danger  of  committal  on  points  which  could  be 
more  safely  left  to  further  developments.  Care  has  been  taken  to  so  shap^e 
the  denouement  as  to  avoid  embarrassment  from  this  source,  saying  that  on 
certain  terms  certain  classes  will  be  pardoned  with  rights  restored. 

It  is  not  said  that  other  classes  or  other  terms  will  never  be  included, 
saying  that  reconstruction  will  be  accepted  if  presented  in  a  specified  way. 
It  is  not  said  it  will  never  be  accepted  in  any  other  way.  The  movements 
by  State  action  for  emancipation  in  several  of  the  States  not  included  in 
the  Emancipation  Proclamation,  are  matters  of  profound  gratulation  ;  and 
while  I  do  not  repeat  in  detail  what  I  have  heretofore  so  earnestly  urged 
upon  this  subject,  my  general  views  remain  unchanged,  and  I  trust  that 
Congress  will  omit  no  fair  opportunity  of  aiding  these  important  steps  to 
the  great  consummation. 

In  the  midst  of  other  cares,  however  important,  we  must  not  lose  sight 
of  the  fact  that  the  war  power  is  still  our  main  reliance.  To  that  power 
alone  can  we  look  yet  for  a  time  to  give  confidence  to  the  people  in  the  con- 
tested regions  that  the  insurgent  power  will  not  again  overrun  them.- 
Until  that  confidence  shall  be  established,  little  can  be  done  any  where  for 
what  is  called  Reconstruction. 

Hence  our  chiefest  care  must  still  be  directed  to  the  army  and  navy,  who 
have  thus  far  borne  their  harder  part  so  nobly  and  well. 

And  it  may  be  esteemed  fifctunate  that,  in  giving  the  greatest  efficiency 
to  these  indispensable  arms,  we  do  also  recognize  the  gallant  men,  from 
commander  to  sentinel,  who  compose  them,  and  to  whom,  more  than  to 
others,  the  world  must  stand  indebted  for  the  home  of  freedom,  disen- 
thralled, regenerated,  enlarged,  and  perpetuated. 

ABRAHAM   LINCOLN. 
December  8,  1863. 


254  RECONSTRUCTION     OF    THE    ONION. 


PROCLAMATION   01    \MM.STY    BY   THE    l'UKSIDENT. 


I'm:  following  Proclamation  is  appended  to  the  Message:  — 
PKOCLAMATION. 

Whereas,  in  and  by  the  Constitution  of  the  United  States,  it  is  provided 
that  the  President  shall  have  power  to  grant  reprieves  and  pardons  fur 
offences  againsl  the  United  States,  except  in  eases  of  impeachment ;  and 
whereas,  a  rebellion  now  exists  whereby  the  loyal  State  governments  of 
several  States  have  for  a  long  time  been  subverted,  and  many  persons  have 
committed,  and  are  now  guilty  of  treason,  against  the  United  States  ;  and 
whereas,  with  reference  to  said  rebellion  and  treason,  laws  have  been  enacted 
3  declaring  forfeitures  and  confiscation  of  property  and  liber- 
ation of  slaves,  all  upon  conditions  and  terms  therein  stated,  and  also 
declaring  that  the  President  was  thereby  authorized,  at  any  time  thereafter, 
by  proclamation,  to  extend  to  persons  who-  may  have  participated  in  the 
existing  rebellion  in  any  State  or  part  thereof,  pardon  and  amnesty,  with  such 
exceptions,  and  at  such  times,  and  on  such  conditions,  as  he  may  deem  expe- 
dient for  the  public  welfare  ;  and, 

Whereas,  the  congressional  declaration  for  limited  and  conditional  par- 
don accords  with  well-established  judicial  exposition  of  the  pardoning 
power  ;  and  whereas,  with  reference  to  said  rebellion,  the  President  of  the 
United  States  has  issued  several  proclamations  with  provisions  in  regard  to 
the  liberation  of  slaves ;  and  whereas,  it  is  now  desired  by  some  persons 
heretofore  engaged  in  said  rebellion  to  resume  their  allegiance  to  the 
I  Slates,  and  to  re-inaugurate  loyal  StSte  government s  within  and  for 
their  respective  States, 

Therefore,  I,  Abraham  Lincoln,  President  of  the  United  States,  do  pro- 
claim, declare,  and  make  known  to  all  persons  who  have  directly  or  by 
implication  participated  in  the  existing  rebellion,  except  as  hereinafter 
excepted,  that  a  full  pardon  is  granted  to  them  and  each  of  them,  with  res- 
toration of  all  rights  of  property,  except  as  to  slaves,  and  in  property  cases 
where  rights  of  third  parties  have  intervened,  and  upon  the  condition  that 
every  such  person  shall  take  and  subscribe  an  oath,  and  thenceforward  keep 
and  maintain  said  oath  inviolate,  and  which  oath  shall  be  registered  for  per- 
manent preservation,  and  shall  be  of  the  tenor  and  effect  following,  to  wit : 

I,  ,   do  solemnly  swear,  in    presence  of  Almighty    God,  that  I   will 

henceforth    faithfully  support,   protect,   and  defend  the  Constitution  of  the 


RECONSTRUCTION     OF     THE     UNION.  255 

United  States  and  the  Union  of  the  States  thereunder,  and  that  I  will,  in 
like  manner,  abide  by  and  faithfully  support  all  acts  of  Congress  passed 
during  the  existing  rebellion  with  reference  to  slaves,  so  long  and  so  far  as 
not  repealed,  or  modified,  or  held  void  by  Congress,  or  by  decree  of  the 
Supreme  Court,  and  that  I  will  in  like  manner  abide  by  and  faithfully  support 
all  proclamations  of  the  President,  made  during  the  existing  rebellion, 
having  reference  to  slaves,  so  long  and  so  far  as  not  modified  or  declared 
void  by  the  Supreme  Court.     So  help  me  God. 

The  persons  excepted  from  the  benefits  of  the  foregoing  provisions  are 
all  who  are  or  shall  have  been  civil  or  diplomatic  officers,  or  agents  of  the 
so-called  Confederate  Government ;  all  who  have  left  judicial  stations  under 
the  United  States  to  aid  rebellion  ;  all  who  are  or  shall  have  been  military 
or  naval  officers  of  said  so-called  Confederate  Government  above  the  rank 
of  colonel  in  the  army  and  of  lieutenant  in  the  navy,  and  all  who  left  seats 
in  the  United  States  Congress  to  aid  the  rebellion. 

All  who  resigned  commissions  in  the  army  or  navy  of  the  United  States 
and  afterwards  aided  the  rebellion,  and  all  who  have  engaged  in  any  way 
maltreating  colored  persons,  or  white  persons  in  charge  of  such,  otherwise 
than  lawfully  as  prisoners  of  war,  and  which  persons  may  have  been  found 
in  the  United  States  service  as  soldiers,  seamen,  or  in  any  other  capacity. 

And  I  do  further  proclaim,  declare,  and  make  known,  that,  whenever,  in 
any  of  the  States  of  Arkansas,  Texas,  Louisiana,  Mississippi,  Tennessee, 
Alabama,  Georgia,  Florida,  South  Carolina,  and  North  Carolina,  a  number 
of  persons,  not  less  than  one  tenth  in  number  of  the  votes  cast  in  such 
States  at  the  Presidential  election  of  the  year  of  our  Lord  one  thousand 
eight  hundred  and  sixty,  having  taken  the  oath  aforesaid,  and  not  having 
since  violated  it,  and  being  qualified  a  voter  by  the  election  law  of  the  State 
existing  immediately  before  the  so-called  act  of  secession,  and  excluding  all 
others,  shall  reestablish  a  State  government  which  shall  he  republican, 
and  in  no  toise  contravening  said  oath,  such  shall  be  recognized,  as  the  true 
government  of  the  State,  and  the  State  shall  receive  these  under  the  benefit 
of  the  constitutional  prooisio)i,  ivhich  declares  that  the  United  States  shall 
guarantee  to  every  Stall1  in  this  Union  a  republican  form  of  government, 
and  shall  protect  each  of  I  hem  a  gainst  invasion,  on  application  of  the 
legislature,  or  the  executive,  where  the  legislature  cannot  be  convened,  and 
against  domestic  violence ;  and  I  do  further  proclaim,  declare,  and  make 
known,  that  any  provisions  which  may  be  adopted  by  such  State  govern- 
ment in  relation  to  the  freed  people  of  such  States  which  shall  recognize 
and  declare  their  permanent  freedom,  provide  for  their  education,  and  which 
may  yet  be  consistent,  as  temporary  arrangement,  with  their  present  con- 
dition as  a  laboring,  landless,  and  homeless  class,  will  not  be  objected  to  by 
the  National  Executive. 

And  it  is  suggested,  as  not  improper,  that  in  constructing  a  loyal  State 
government  in  a  Slate,  the  name  of  the  Stale,  tht  boundary,  lie  sub- 
divisions, the  constitution,  anil  the  general  code  "/'  laws,  as  before  the 


256  in  i  0N8TR1  CTION     OF     I  in:    I  NION. 

rabject  «>nly  to  tin-  modifications  made  nea 
by  tin-  condition*  hereinbefore  stated,  and  such  others,  it'  any,  nol  contra 
veiling  said  conditions,  and  which  may  be  deemed  expedienl   by  those 
framing  the  new  State  government 

ivoid  misunderstanding,  it  may  lie  proper  to  saj  thai  this  proclama- 
tion. si»  far  as  it  relates  to  State  governments,  has  no  reference  to  States 
wherein  loyal  State  governments  have  all  the  while  been  maintained. 

\  for  the  same  reason  it  may  be  proper  further  to  say.  thai  whether 
members  sent  to  Congress  from  any  State  shall  be  admitted  to  seats,  con- 
stitutionally iusively  with  the  respective  Houses,  and  not  to  any 

extent  with  the  Executive}  and  still  further,  that  this  proclamation  18  intended 
to  presenl  the  people  of  the  States  wherein  the  national  authority  has  been 
suspended  and  loyal  State  governments  have  been  subverted,  a  mode  in 
and  by  which  the  national  authority  and  loyal  Stale  governments  maybe 
established  within  such  States,  or  in  ami  of  them;  and  while  the  mode 
presented  is  the  best  the  Executive  can  suggest,  with  his  present  impres- 
sions, it  must  not  be  understood  that  no  other  possible  mode  would  be 
acceptable. 

Given  under  my  hand  at  the  City  of  "Washington,  the  eighth  day  of 
December,  A.  D.  one  thousand  eight  hundred  and  sixty  three,  and 
of  the  Independence  of  the  United  States  of  America  the  eighty-eighth. 

ABRAHAM   LINCOLN. 


MILITARY  GOVERNMENT 


OF 


HOSTILE    TEEEITOEY 


IN  TIME  OF  WAR. 


PREFACE  TO  MILITARY  GOVERNMENT. 


The  following  pages  on  "  Military  Government  of  Hostile  Territory  in 
Time  of  War,"  were  written  early  in  1864,  in  answer  to  a  letter  of  the 
Hon.  J.  M.  Ashley,  M.  C,  of  Ohio,  to  the  Secretary  of  War  (dated 
December  24,  1863),  which  enclosed  the  draft  of  a  bill  for  a  military 
provisional  government  over  insurrectionary  States,  proposed  by  Mr. 
Ashley  for  consideration  by  the  "  Special  Committee  of  the  House  on 
the  Rebellious  States."  In  that  letter  he  requested  the  Secretary  "to 
make  any  suggestions  he  might  have  to  make,"  or,  "if  he  had  not  time  to 
make  any,  to  submit  the  bill  to  the  Solicitor  of  the  War  Department  for 
his  opinion."  This  communication,  with  the  proposed  bill,  were  accord- 
ingly referred,  as  requested,  by  the  Secretary  of  War.  A  copy  of  the 
letter,  and  of  my  reply,  are  hereto  appended. 

The  subjects  discussed  are  of  great  and  growing  importance.  Clear 
and  just  views  of  the  rights,  powers,  and  obligations  of  the  Government 
are  necessary  to  a  wise  and  consistent  administration  of  affairs  in  the  insur- 
rectionary districts,  during  their  transition  from  open  hostilities  to  their 
peaceful  restoration  to  the  Union.  A  careful  regard,  in  the  beginning, 
to  the  proper  limitations  of  authority  in  the  respective  departments  of 
this  government,  will  be  necessary  in  order  to  avoid  embarrassment  and 
confusion  in  the  end ;  and  a  just  appreciation  of  the  war  powers  of  the 
President  will  tend  to  relieve  patriotic  citizens  from  apprehension,  even 
if  Congress  should,  for  the  present,  omit  further  legislation  on  these 
subjects. 

The  following  chapters  are  only  a  development  of  the  principles  stated 
in  the  "  War  Powers,"  pages  54  to  57. 

W.  W. 

Washington,  D.  C,  March  24,  1864. 


MILITARY  GOVERNMENT. 


CHAPTER    I. 


ITS    MEANS    AND    RESULTS. 


Justifiable  war  may,  by  the  law  of  nations,  be  right- 
fully continued  until  the  purposes  for  which  it  was 
commenced  have  been  accomplished.  The  overthrow 
and  destruction  of  armies,  the  capture  of  enemies,  the 
seizure  of  property,  and  the  occupation  of  hostile  terri- 
tory, are  but  preliminary  measures.  In  our  civil  war, 
the  final  result  should  be  the  complete  reestablishment 
of  lawful  government  on  foundations  strong  enough  to 
insure  its  continued  supremacy  without  danger  of  sub- 
version or  of  renewed  assault.  To  attain  that  result, 
after  active  hostilities  shall  have  ceased,  order  must  be 
restored,  and  domestic  tranquillity  must  be  maintained. 
To  preserve  order,  some  means  must  be  devised  for 
restraining  lawless  aggressions  in  hostile  districts,  and 
for  securing  non-combatant  citizens  in  the  enjoyment  of 
civil  rights;  otherwise,  the  country  would  be  plunged 
into  anarchy  ;  successful  campaigns  would  result  only 
in  waste  of  blood ;  conquest,  however  costly,  could  not 
be  made  permanent  or  secure,  and  legitimate  govern- 
ment could  not  be  successfully  restored. 

BOMB    FORM    OF   GOVERNMENT    IS     NECESSARY   TO    SECURE   A    CONQUEST. 

Though  it  is  a  legitimate  use  of  military  power  to 
secure  the  possession  of  that  which  "has  been  acquired 


262  MILITARY    GOVERNMENT. 

by  arms,  yei  il  is  difficult,  by  aid  of  any  moderate  num- 
ber »)t'  troops,  to  guard  and  oversee  an  extended  terri- 
tory; and  it  ia  practically  impossible  for  any  army  to 
hold  and  occupy  all  section-  of  it  at  the  .-Mine  moment 
Therefore,  if  the  inhabitants  arc  to  be  permitted  to 
remain  in  their  domiciles  unmolested,  some  mode  must 
be  adopted  of  controlling  their  movements,  and  of  pre- 

tting  their  commission  of  acts  of  hostility  against 
their  conquerors,  or  of  violence  against  each  other. 
Stragglers  from  our  army  must  be  protected  from  mur- 
der;  commissary's  suppliesmusl  be  guarded  from  capture 

ruerillas,  and  non-combatants  must  be  secured  in  their 

ial  rights,  and  punished  for  their  crimes.  The  total 
disorganization   produced  by  civil   war   requires,  more 

•i  than  that  produced  by  foreign  war,  the  restraints  of 
martial  law.  In  countries  torn  by  intestine  commotions, 
neighbors  become  enemies;  murders,  robberies,  destruc- 
tion of  property,  and  all  forms  of  lawless  violence  arc 
common,  and,  in  the  absence  of  military  rule,  would  go 
unrestrained.     Hence,  to  secure  peaceful  possession  of 

i  territories,  some  form  of  government  must  of  ne- 
cessity be  established,  whereby  these  crimes  can  be 
j  ii  vented  or  punished.  Firm  possession  of  a  conquered 
province  can  be  held  only  by  establishing  a  govern- 
ment which  shall  control  the  inhabitants  thereof. 

Since  war  destroys  or  suspends  municipal  laws  in  the 
country  where  hostilities  are  carried  on,  no  govern- 
ment is  left  there  but  such  as  is  derived  from  the  laws 
of  war.  All  crimes  must  be  restrained  or  punished  by 
belligerent  law,  or  go  un  whipped  of  justice.  Hence  every 

e  of  wrong  must  be  dealt  with  by  force  of  arms,  or 
must  be  disposed  of  by  tribunals  acting  under  sanction 
a  id  authority  of  military  power. 


MILITARY    GOVERNMENT.  263 

WHY   GOVERNMENT   IS     ESSENTIAL    TO    THE     SECURITY   OF     A   CONQUEST. 

The  necessity  of  provisional  or  temporary  govern- 
ment will  become  apparent  by  observing  the  condition 
of  a  people  who  have  been  overpowered  by  arms. 

Suppose,  by  way  of  illustration,  that  in  one  of  the 
border  slave  States  in  time  of  profound  peace,  by  some 
sudden  and  unforeseen  catastrophe,  all  the  officers  of 
civil  government  were  to  perish  ;  that  the  judges,  sher- 
iffs, juries,  and  all  courts  of  justice  were  to  withdraw 
from  that  region  ;  that  the  jails  and  penitentiaries  were 
to  be  set  open,  and  the  escaped  criminals  were  to  reap- 
pear amid  the  scenes  of  their  former  crimes  ;  that  the 
officers  of  the  United  States  had  fled ;  that  all  public 
property  had  been  seized  by  violence,  and  appropriated 
to  private  uses ;  that  all  restraints  of  law  or  of  force 
were  taken  from  wicked  and  unprincipled  men ;  that 
"  might  made  right"  ;  that  debts  could  not  be  collected  • 
that  obligations  the  most  solemn  could  not  be  enforced ; 
that  men  and  women  could  be  shot,  hung,  or  murdered 
in  cold  blood,  if  they  differed  in  opinion  on  any  ques- 
tion of  religion,  of  politics,  or  of  settlement  of  accounts ; 
that  private  malice  could  be  gratified  by  the  midnight 
burning  of  a  neighbor's  house,  and  that  injuries  too  foul 
and  too  horrid  for  mention  could  be  perpetrated  with- 
out means  of  redress ;  that  all  the  laws  of  civilized  soci- 
ety and  the  most  sacred  rights  of  humanity  could  be 
violated  every  hour  of  the  day  or  night,  with  no  protec- 
tion for  the  innocent,  no  punishment  for  the  guilty. 

Such  a  state  of  things  would  inevitably  remit  in  civil 
ivar.  Clans  and  associations  would  be  formed  ;  the  whole 
people  would  sleep  on  their  arms ;  revenge  would  in- 
flame  them;  havoc  and  slaughter  would  be  wide- 
spread ;  burning  villages  and  smoking  towns,  devastated 


Mill  i\i:v    <;n\  i  i:\mi\t. 


lands  and  genera]  ruin  would  demonstrate  to  all  ob- 
servers that  order  is  es  ential  t"  Lhe  Bocial  existence  of  a 
community,  and  thai  peace  can  bo  maintained  only  by 
Borne  governmenl  of  law s. 

If  the  absence  of  government  in  time  of  peace  would 
be  followed  by  such  calamitous  results,  they  could  not 
he  avoided  or  escaped  by  a  population  already  engaged 

in  civil  broils,  if  unprotected  by  military  force,  or  mili- 
tary administration.  In  the  rebellious  States  now  occu- 
I  by  our  armies,  we  find  a  population  split  into  factions, 
part  slave,  part  freemen:  traitors  fighting  against  loyal 
men;  non-coinhatants  hostile  to  friends  of  our  govern- 
ment :  officers  attempting  to  collect  the  revenue  and 
to  enforce  the  blockade  in  deadly  encounters  with  swin- 
dlers and  freebooters;  banditti  and  guerillamen  with 
their  secret  allies,  murdering  in  cold  blood  our  sick  or 
wounded  soldiers ;  robbers,  plunderers,  cutthroats,  incen- 
diaries, and  assassins  wreaking  their  inhuman  passions 
even  upon  defenceless  women  and  children;  never  was 
there  a  society,  whose  shattered  and  revolutionary  con- 
dition more  imperiously  demanded  a  firm  and  powerful 
provisional  government,  following  after  the  cessation  of 
active  hostilities.  To  withdraw,  and  so  to  lose  control 
of  conquered  territory,  either  by  military  occupation  of 
our  armies  in  force,  or  by  provisional  government,  would 
be  to  throw  away  all  that  has  been  gained  by  war,  and 
basely  to  violate  an  obligation  under  the  laws  of  war  to 
the  people  who  shall  have  been  coerced  into  submission 
to  our  power. 

MILITARY     GOVERNMENT    A    MILD     FORM     OF     HOSTILITIES  —  A    CON'CES- 
BION ITS    TENDENCY. 

The  maintenance  of  a  provisional  military  govern- 
ment is  an  economical    mode  of  continuing   hostilities 


MILITARY     GOVERNMENT.  265 

against  a  subjugated  people,  by  dispensing  with  the 
unnecessary  use  of  force. 

To  grant  a  government  of  any  kind  to  a  conquered 
people,  while  engaged  in  active  hostilities,  is  a  conces- 
sion, a  boon,  a  benefit,  not  an  unjustifiable  assumption 
of  rights.  The  law  of  war  justifies  the  use  of  brute  force 
as  the  means  of  governing  a  public  enemy.  The  judges 
under  that  law  are  military  officers  and  sometimes  com- 
mon soldiers,  without  aid  of  law-books,  counsellors,  ju- 
ries, codes,  statutes,  or  regulations  other  than  their  own 
mil.  From  their  decrees  there  is  no  appeal;  judge, 
jury,  and  executioner  too  often  stand  embodied  in  a 
single  individual  at  the  but-end  of  a  Sharp's  rifle. 

In  the  civil  war  brought  upon  southern  rebels  by 
their  own  choice,  to  permit  them  to  be  governed  by 
rules,  regulations,  statutes,  laws,  and  codes  of  jurispru- 
dence ;  to  give  them  jurists  able  and  willing  to  abide 
by  standing  laws,  and  thus  to  restore  (as  far  as  is  con- 
sistent with  public  safety  and  the  secure  tenure  of 
conquest)  the  blessings  of  civil  liberty  and  a  just  ad- 
ministration of  laws  —  most  of  which  are  made  by  those 
on  whom  they  are  administered  —  is  an  act  of  magna- 
nimity worthy  of  a  great  people. 

Such  a  government,  though  founded  on  and  admin- 
istered by  military  power,  surely  tends  to  restore 
the  confidence  of  the  disloyal  by  giving  them  rights 
they  could  not  otherwise  enjoy,  and  by  protecting  them 
from  unnecessary  hardships  and  wrongs.  It  cannot 
fail  to  encourage  and  support  the  friends  of  the  Union 
in  disloyal  districts,  by  demonstrating  to  all  the  for- 
bearance and  justice  of  those  who  are  responsible  for 
the  conduct  of  the  war. 


l  uri:r   MUSI     Bl      \    MILITARY    GOVERNMENT    "I.    NO  GOVERNMENT. 

When  the  country  can  no  longer  be  governed  by  the 
magistrate,  it  musl  be  handed  over  to  the  soldier. 

When  law  lire. -Mies  powerless,  force  musl  be  applied, 
in  civil  tribunals  fall,  military  tribunals  musl  rise. 

Foreign  territory  acquired  by  the  United  States,  by 

iquest  or  by  treaty,  does  not,  by  force  of  the  Consti- 
tution, become  entitled  to  self-government,*  nor  docs 
the  conquest  of  public  enemies  within  the  domain  of  the 
United  Stair-  confer  upon  them  the  right  of  self-govern^ 
unit:  for  none  but  military  control  of  the  conqueror 
{■■aw  exisl  in  a  hostile  region.  There  being  in  the  bellig- 
erent district  in  the  South  no  power  or  authority  of  the 
enemv  which  can  be  recognized  as  legitimate  by  the 
United  States,  our  military  power  must  be  the  basis  on 
which  our  control  over  the  affairs  of  the  inhabitants 
living  there  must  finally  rest.  By  conquest,  the  local 
government  and  the  courts  of  justice  are  deprived  of 
their  power,  because  the  former  is  hostile,  and  the  latter 
derive  their  authority  from  a  public  enemy.  No  local 
tribunal,  civil,  judicial,  political,  or  military  exists  in  a 
conquered  district  whose  authority  is  recognized  as  law- 
ful by  the  conqueror,  except  such  as  is  established  by 
him.  v      Hence     the    only    government    that    can    be 

ranized  while  war  lasts,  is  one  whose  authority 
is  derived  from  the  military  power  of  the  conqueror, 
and   by   the    right  of  conquest.      But   as  he   is  clothed 

*  3  Story.  Comm.  1318.     Am.  In--.  ('•>.  vs.  Canter,  1  Peters,  511,  542,  516. 

f  By  the  Act  of  July  17,  1862,  il  i-  made  the  duty  of  the  President  to  seize 

tli.-  estate,  etc.,  of  all  persons  acting  thereafter  ;i-  governors  of  States,  members 

of  courts,  of  the  so-called  Confeder- 
holding  any  office  under  either  of  the  said 
Such  persons  cannot  therefore  i  e  recognized  by  our  government 
other.-  criminals. 


MILITARY     GOVERNMENT.  267 

only  with  military  authority,  he  can  establish  no  gov 
eminent  other  than  one  of  a  military  character.  There- 
fore, if  he  finds  it  expedient  to  administer  civil  or  mu- 
nicipal codes  of  law,  they  must  be  adopted  and  applied 
as  military  law,  following  therein,  as  far  as  practicable, 
the  rules  and  forms  of  civil  jurisprudence. 


THE  RIGIIT  TO  ERECT  MILITARY  GOVERNMENTS  IS  AN  ESSENTIAL 
PART  OF  THE  WAR-POWER,  AND  IS  FOUNDED  IN  NECESSITY  AND 
SANCTIONED   BY   AUTHORITY. 

Thus  it  has  been  shown  that  justifiable  war  ought  to 
be  prosecuted  until  the  object  for  which  it  was  com- 
menced has  been  attained.  That  object  is  the  restora- 
tion of  the  authority  of  the  United  States  over  all  the 
territory  and  inhabitants  thereof,  a  result  which  can  be 
accomplished  with  the  least  injury  to  ourselves  and  to 
our  enemies  by  substituting,  as  far  as  safety  will  permit, 
a  temporary  government  over  them  by  military  law, 
instead  of  continuing  the  use  of  mere  force. 

Reason  and  experience  alike  demonstrate  the  neces- 
sity of  that  mode  of  regulating  a  hostile  community 
while  passing  through  the  intermediate  state  from  open 
and  general  warfare  to  the  reestablishment  of  peaceful 
institutions.  No  government  other  than  that  author- 
ized by  the  laW  of  war  is  practically  useful,  or  can  law- 
fully exist,  until  peace  is  so  far  restored  that  the  enemy 
will  voluntarily  submit  to  the  laws  of  Congress. 

The  right  to  exercise  control  by  armed  force  in  time 
of  war  over  hostile  regions  is  a  necessary  part  of  the 
power  of  making  and  prosecuting  war.  If  the  people 
of  a  belligerent  locality  can  be  lawfully  captured  and 
held  as  prisoners  of  war,  and  can  thus  be  subjected  to 
the  orders  of  a  commanding  officer,  it  would  be  unrea- 


Mil. ir  \i;\     GOT  EBNM1  N  r. 

Bonable  to  suppose  thai  the  same  captives  could  not  be 
held  subjecl  to  the  same  orders,  if  permitted  to  go  at 
large  within  the  limits  in  which  the  military  power  of 
thai  officer  \\  as  supreme. 

Absolute  necessity  is  the  foundation  and  justification 
on  which  the  righl  to  enforce  military  government 
rests.  That  righl  has  been  used  or  practically  acknowl- 
edged by  most  of  the  modern  civilized  nations.  It  is  a 
righl  founded  on  reason,  indispensable  in  practice,  and 
is  sanctioned  by  the  authority  of  writers  on  interna- 
tional law.  by  jurists  in  Europe,  and  by  the  Supreme 
Court  of  the  United  States. 

Wheaton,  Law  of  Nations  (Lawrence's  ed.),  99. 
Halleck,  Intern.  Law,  778. 

Fleming  vs.  Page,  9  How.  S.  C.  R.  615  (Appendix,  76). 
Cross  vs.  Harrison,  16     "         190  (Appendix,  80). 
Leitensdorfer  vs.  Webb,  20  How.  177  (Appendix,  86). 
Am.  Ins.  Co.  vs.  Canter,  1  Peters,  S.  C.  R.  542. 
U.  S.  vs.  Gratiot,  14  Peters,  S.  C.  R.  526. 
Also,  see  cases  in  the  Appendix. 


CHAPTER    II. 

THE   CONSTITUTION   AUTHORIZES    THE   PRESIDENT   TO    ESTABLISH 
MILITARY   GOVERNMENTS. 

Whenever  the  President  is  called  on  to  repel  invasion 
or  to  suppress  rebellion  by  force,  if  the  employment  of 
military  government  is  a  useful  and  proper  means  of 
accomplishing  that  object,  the  Constitution  confers  on 
him  the  power  to  institute  such  government  for  that 
purpose. 

The  power  of  the  President  to  establish  military  gov- 
ernments is  derived  from  the  Constitution,  Art.  II.,  Sec. 
1,  CI.  1,  and  is  a  legitimate  exercise  of  his'  authority  as 
Commander-in-Chief. 

Art.  IV.,  Sec.  4,  also  provides  that,  "  The  United 
States  shall  guaranty  to  every  State  in  this  Union  a 
republican  form  of  government ;  and  shall  protect  each 
of  them  against  invasion,  and,  on  application  of  the  Leg- 
islature, or  of  the  Executive  (when  the  Legislature  can- 
not be  convened),  against  domestic  violence." 

A  condition  of  public  affairs  like  that  now  existing  in 
certain  rebellious  States,  renders  a  military  government 
thereof  indispensably  necessary  to  enable  the  United 
States  to  perform  this  guaranty  of  the  Constitution. 
The  authority,  therefore,  to  institute  such  a  government 
for  that  purpose  belongs  to  the  President,  because  he 
is  bound  to  see  the  laws  enforced  ;  and  also,  under  Art. 
I.,  Sec.  8,  CI.  18,  to  Congress,  because  it  is  bound  to 
pass  all  laws  necessary  and  proper  to  enable  the  Presi- 
dent to  execute  his  duties. 

269 


270 


Mil ,ITAM     GOVERNMl  NT. 


The  topics  now  under  consideration  do  nol   require 

any  examination  of  the  nature  or  extent  of  the  righl  or 
duty  of  Congress,  or  of  the  President  as  an  executive 
officer,  to  carry  the  Art.  IV..  See.  I.  into  effect  The 
erection  and  maintenance  for  a  time,  by  executive  au- 
thority, of  a  provisional  government  in  any  State  or 
Territory  as  a  "necessary  and  proper  means"  of  carry- 
ing the  guaranties  of  the  Constitution  into  effect,  may 
be  the  subject  of  explanation  in  a  future  essay. 

The  right  of  Congress  is  beyond  question  to  establish 
temporary  territorial  or  provisional  governments  over 
those  parts  of  the  country  which,  having  been  engaged 
in  civil  war  against  the  United  States,  have  by  force  of 
arms  been  coerced  into  submission  to  our  government. :!: 

Jt  is  not  necessary  in  this  place  to  make  further  ex- 
planations of  Articles  I.  and  IV.,  it  being  sufficient  for 
our  present  purpose  to  refer  to  the  powers  conferred  by 
the  second  Article. 

The  Constitution,  Article  II.,  Sec.  2,  CI.  1,  provides 
that,  "The  President  shall  be  Commander-in-Chief  of 
the  Army  and  Navy  of  the  United  States,  and  of  the 
Militia  of  the  several  States  when  called  into  the  actual 
Bervice  of  the  United  States." 

This  clause  confers  by  necessary  implication,  upon 
the  Commander-in-Chief  of  the  Army  and  Navy,  the 
right  in  time  of  war  to  subject  public  enemies  to  mili- 
tary government  and  regulation;  for  no  limits  to  the 
power  of  the  President,  acting  as  a  military  commander, 
are  prescribed  in  the  Constitution.  The  laws  of  war, 
by  which  alone  his  operations  should  be  regulated, 
iblish  his  right  to  erect  such  government,  and  to 
maintain  it  by  force  of  arms.     The  war  powers  of  the 

*  Sec  //'«/,  Cli.  VI. 


MILITARY     GOVERNMENT.  271 

President  are  interpreted  and  controlled   only  by  the 
rules  of  belligerent  law.  * 

As  the  authority  to  call  into  active  service  the  Army 
and  Navy,  to  capture  or  kill  an  adversary  in  battle,  to 
seize  and  destroy  his  property,  and  to  occupy  and  hold 
his  lands  by  force,  has  been  confided,  without  limitation, 
to  the  President,  when  the  occasion  for  these  measures 
occurs,  would  it  not  seem  inconsistent  to  withhold  from 
him  the  right  to  keep  what  he  has  acquired  by  arms,  and 
to  hold  in  his  control  (while  war  lasts)  the  enemy  whom 
he  has  overthrown  ? 

If  it  be  said  that  the  power  thus  claimed  is  not 
granted  to  the  President  in  express  terms,  it  may  with 
equal  correctness  be  said  that  the  authority  to  carry  on 
war,  to  suppress  insurrections  or  to  repel  invasions,  or 
to  make  captures  on  land  or  sea,  is  not  conferred  upon 
him  in  express  terms.  The  Constitution  enables  the 
President  to  use  war  powers  in  no  other  way  than  by 
authorizing  him  under  certain  circumstances  to  call  into 
service  and  to  take  command  of  the  Army  and  Navy. 
But  Congress  is  empowered  to  provide  for  "raising  and 
maintaining  armies,"  and  to  "make  rules  for  captures 
on  land  and  sea."  Hence  no  one  can  doubt  that  when 
an  army  is  raised,  and  captures  are  to  be  made,  the 
President,  being  placed  in  command,  has  the  right  to 
employ  these  forces  so  as  to  accomplish  the  purpose  for 
which  they  were  organized,  and  therefore  has  the  right 
to  make  captures,  as  unquestionably  as  he  would  have 

*  See  cases  subsequently  cited. 

Fleming  vs.  Page,  9  How.  G15. 
Cross  vs.  Harrison,  16  How.  90. 
Leitensdorfer  vs.  Webb,  20  How.  177. 
Wheaton,  99  ;  War  Powers,  54. 


Mil. IT  \KV    i;u\  I  RNMENT. 


If  th.it  righl  had  been  conferred  <>n  him  in  plain  words 

!>\    the   Constitution. 

There  can  be  do  reason  to  doubt  that  the  army  is 
placed  under  the  supreme  command  of  the  Chief  Mag- 
istrate for  all  purposes  for  which  offensive  or  defensive 
war  may  be  justly  waged. 

If  he  has  the  authority  to  commit  any  act  of  hos- 
tility for  suppression  of  rebellion  or  repelling  of  inva- 
sion, he  has  equal  right  to  commit  all  acts  of  hostility 
which  may  in  his  judgment  be  required  to  secure  suc- 
cess in*  his  military  operations;  and  he  has  therefore 
the  same  right  to  erect  a  military  government  in  hos- 
tile territory,  under  circumstances  justifying  it,  as  to  per- 
form any  other  military  act. 

The  erection  of  such  government  over  the  territory 
and  persons  of  a  public  enemy  in  time  of  war  is  an  act 
of  war,  is  in  fact  continuing  against  them  a  species  of 
hostility  without  the  use  of  unnecessary  force.  It  is  a 
mode  of  retaining  a  conquest,  of  continuing  custody 
and  supervision  over  an  unfriendly  population,  and  of 
subjecting  malcontent  non-combatants  to  the  will  of  a 
superior  force  so  as  to  prevent  them  from  engaging  in 
hostilities  or  inciting-  insurrections  or  breaches  of  the 
peace,  or  from  giving  aid  and  comfort  to  the  enemy. 
Large  numbers  of  persons  may  thus  be  held  in  subjec- 
tion to  the  moral  and  physical  force  of  comparatively 
few  military  men.  Contributions  may  be  levied,  prop- 
erty may  be  confiscated,  commerce  may  be  restrained 
or  forbidden,  and  an  unfriendly  population  may  be  held 
in  subjection  by  military  government,  for  the  same  rea- 
sons which  would  justify  the  repression  of  their  open 
hostilities  by  force  of  arms.  If  the  Constitution  allows 
the  President  to  go  to  war,  and  to  conquer  the  public 
enemy,  the  greater  power  must  include  the  less;  the 


MILITARY    GOVERNMENT. 


273 


power  to  make  a  conquest  must  include  the  authority 
to  keep  and  maintain  possession  of  it,  while  war 
continues. 

No  one  would  doubt  our  right  to  occupy  a  hostile 
district  of  country  by  military  posts,  or  by  soldiers 
stationed  in  commanding  positions,  or  to  enforce  upon 
all  its  inhabitants  the  rigid  rules  of  martial  law. 

How,  then,  can  the  right  be  questioned  to  hold  the 
same  territory  by  a  small  number  of  soldiers,  administer- 
ing the  same  law,  under  the  same  authority,  whether 
these  military  men  be  called  by  their  ordinary  titles,  or 
be  styled  provost  marshals  or  military  governors  ? 

If  the  humanity  of  the  conqueror  allows  the  rigid 
rules  of  martial  law  to  be  relaxed,  and  permits  the  forms 
of  local  jurisprudence  to  be  continued  under  the  same 
authority,  so  far  as  it  may  be  done  consistently  with  the 
security  of  the  conquest,  on  what  principle  can  his  right 
to  do  so  be  denied  ? 

DUTY   OF    THE   CONQUEROR    TO   GOVERN    THOSE   WHOM    HE   HAS    SUB- 
JUGATED. 

In  view  of  the  necessity  of  securing  the  ends  for 
which  war  is  waged,  and  the  consequences  following 
from  the  absence  of  government  over  conquered  terri- 
tory, it  is  undoubtedly  the  right  and  duty  of  the  con- 
queror to  erect  and  maintain,  during  war,  a  provisional 
military  government  over  districts  which  have  been  sub- 
jected to  his  power. 

This  right  is  recognized  and  confirmed  by  the  ac- 
knowledged laws  of  war,  and  by  the  decisions  of  the 
Supreme  Court  of  the  United  States;  the  propriety  and 
necessity  of  its  enforcement  have  been  shown  by  our 
experience  in  New  Mexico  and  California,  and  in  the 
States  now  in  rebellion. 


CHAPTER    III. 

DI8TRIB1    riO»    "l     POWERS    UNDER    MILITARY   GOVERNMENT. 

Military  governments  control  and  regulate  a  great 
variety  of  public,  private,  civil,  criminal,  judicial,  legisla- 
tive, and  military  affairs.  Their  powers  maybe  concen- 
tre ted  in  a  single  officer,  acting  as  a  military  governor, 
or  they  may  be  distributed  among  several  persons  acting 
under  authority  of  the  Commander-in-Chief,  who  may 
appoint  one  as  commander,  another  as  governor,  a  third 
as  chief  justice,  and  others  as  collectors  of  customs,  in  the 
same  department.  % 

Among  the  various  modes  of  instituting  military  gov- 
ernments, one  is  by  a  proclamation  of  martial  law,  and 
by  authorizing  or  appointing  courts  martial,  courts  of 
inquiry,  and  military  commissions  to  carry  that  law  into 

icution  over  belligerent  districts.  These  institutions 
are  best  adapted  to  localities  whose  inhabitants  are  too 
hostile  to  admit  of  milder  forms  of  administration. 

The  character  of  the  laws,  and  the  organization  of  the 
tribunals  now  authorized  by  the  statutes  to  administer  such 
government,  will  next  be  considered. 

DIFFERENT   KINDS    OF   LAW   OF   WAR. 

Martial  Laiv  consists  of  a  system  of  rules  and  princi- 
ples regulating  or  modifying  the  rights,  liabilities,  and 
duties,  the  social,  municipal,  and  international  relations 
in  time  of  war,  of  all  persons,  whether  neutral  or  bel- 
ligerent* 

*  See  Military  Arrestej  p.  10.     War  Powers,  p.  ICG. 

■J7I 


MILITARY    GOVERNMENT.  275 

Military  law  is  that  part  of  the  martial  law  of  the 
land  designed  for  the  government  of  those  who  are 
engaged  in  the  military  service. 

Of  the  rules  and  principles  of  martial  law,  many  have 
as  yet  not  been  reduced  to  the  form  of  statutes  or  reg- 
ulations, although  they  are  familiar  in  the  practice  of 
courts  martial.  The  69th  Article  of  War  refers  to  and' 
adopts  them  as  part  of  the  martial  law.  They  may  be 
styled  the  " lex  non  scripta"  the  custom  of  war,  the  com- 
mon law  of  the  army. 

In  the  United  States,  martial  law  is  modified  by 
military  laws  made  by  Congress  as  articles  of  war,  by 
general  regulations  for  the  government  of  the  army, 
by  all  statutes  on  military  subjects  which  the  Consti- 
tution empowers  Congress  to  pass,  and  by  all  lawful 
orders  of  the  President,  as  Commander-in-Chief,  and 
of  the  Secretary  of  War,  or  officers  acting  under 
them. 

Martial  law,  thus  modified,  is,  when  in  force  under 
the  Constitution,  administered  within  or  without  the 
United  States  by  various  military  tribunals,  including 
courts  martial,  military  commissions,  and  courts  of  in- 
quiry.* 

MILITARY    TRIBUNALS  —  HOW   AUTHORIZED  —  THEIR    CHARACTERISTICS. 

The  war  courts  now  established  by  statutes,  and  rec- 
ognized by  judicial  decisions,  are  called  courts  martial, 
courts  of  inquiry,  and  military  commissions. 

The  Constitution,  Art.  I.,  Sect.  8,  Clause  14,  gives  Con- 
gress power  "  to  make  rules  for  the  government  and 
regulation  of  the  land  and  naval  forces." 

The  16th   clause   declares   that  Congress  shall  have 

*  See  Benet  on  Military  Law  and  Courts  Martial,  11. 
Dehart  on  Military  Law   and  Courts  Martial,  3. 
4 


2  |  0  MM. I  PAB1    G0VERNM1  '■  I  . 

p  iwer  to  u  provide  for  organizing,  arming,  and  disciplin- 
ing the  militia ;  am!  for  governing  such  pari  of  them 
as  may  be  employed  in  the  service  of  the  United 
Stal 

To  provide  for  disciplining  and  governing  militia  in 
the  Bervice,  means  to  make  Jaws,  rules,  or  regulations  for 
their  discipline  and  government.  The  power  to  make 
them  would  be  inoperative,  unless  means  could  be  em- 
ployed to  administer  them.  Congress,  therefore,  has 
power  to  provide  means  as  well  as  rules  for  governing. 
No  uncertainty  is  left  upon  this  question;  for  the  18th 
clause  of  the  same  section  gives  Congress  power  "  to 
make  all  laws  which  shall  be  necessary  and  proper  to 
carry  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  the  Constitution  in  the  Government 
of  the  United  States,  or  in  any  department  or  officer 
thereof." 

In  the  execution  of  this  authority,  Congress  has  pro- 
vided for  governing  the  army  by  erecting  military 
courts,  which  are  not  merely  necessary  and  proper,  but 
are  the  only  practical  means  yet  found  for  carrying  into 
execution  the  rules  and  regulations  so  enacted.  Such 
courts  are  therefore  sanctioned  as  positively  as  if  estab- 
lished by  express  language  in  the  Constitution. 

POWER    OF    THE    PRESIDENT    TO    ESTABLISH    COURTS   OF    WAR. 

Not  only  has  Congress  power  to  create  tribunals  to 
administer  "rules  and  regulations  for  governing  the 
army  and  the  navy,"  but  there  exists  another  indepen- 
dent power  to  create  and  establish  courts  with  juris- 
diction over  a  wider  range  of  subjects  and  of  persons. 
That  power  is  vested  by  the  Constitution  in  the  Presi- 
dent, as   Commander-in-Chief  of   the   army  and    navy, 


MILITARY    GOVERNMENT.  277 

when  in  actual  service  in  time  of  war,  and  is  a  branch 
of  the  power  to  erect  and  maintain  military  govern- 
ments. 

Military  courts  are  a  usual  and  essential  part  of  the 
machinery  of  military  government ;  the  right  to  insti- 
tute the  one  necessarily  implies  the  right  to  organize 
the  other,  and  the  jurisdiction  of  such  courts  embraces 
offences  not  declared  punishable  by  any  law  of  Con- 
gress, and  persons  out  of  the  reach  of  any  but  military 
process. 

How  far  it  may  be  within  the  province  of  Congress  to 
control  the  operations  of  war  courts  instituted  by  the 
President,  need  not  be  here  discussed. 

As  has  been  said,  one  class  of  courts  of  war  may  be 
instituted  by  laws  of  Congress,  and  another  class  may 
be  created  by  the  President.  Both  are  under  his  con- 
trol as  military  chief  of  the  forces,  while  at  the  same 
time  he  is  bound  to  execute  the  laws  of  the  land. 

The  right  of  the  Commander-in-Chief,  as  well  as  the 
right  of  Congress,  to  create  military  courts,  has  been 
sanctioned  by  repeated  decisions  of  the  United  States* 

DO    COURTS    OF    WAR    EXERCISE   JUDICIAL    POWER  ? 

As  the  proceedings  of  war  courts  in  some  respects 
resemble  those  of  courts  of  law,  it  has  been  questioned 
whether  they  exercise  any  part  cf  the  judicial  power 
which  is  vested  by  the  Constitution  in  "  one  Supreme 
Court  and  in  such' other  inferior  courts  as  Congress  may 
from  time  to  time  ordain  and  establish."  —  Constitution, 
Art.  III.,  Sect.  1. 

It  has  been  decided  by  the  Supreme  Court  of  the 
United  States,  that  military  tribunals  exercise  no  part 

*  See  authorities  in  the  Appendix. 


'J  /  8  Mill  lAUY    GOVERNMENT. 

of  the  judicial  powe/,  lmt  only  a  portion  of  the  mili- 
tary power  of  the  Executive.  And  it  lias  also  been 
determined  thai  the  sentences  or  other  lawful  proceed- 
ings of  Courts  martial  of  the  United  States  arc  not.  the 
subject  of  appeal  or  revision  in  any  judicial  courts  of 
the  States  or  of  the  United  States.* 

WOULD   JUDICIAL    COURTS    BE    USEFUL    AS    WAR    COUKTS  ? 

If  it  be  said  that  judicial  courts  ought  to  employed 
for  the  administration  of  the  laws  of  war,  in  order  there- 
by to  preserve  the  safeguards  of  civil  liberty,  the 
answer  is  that  the  whole  system  of  judicial  courts 
would  be  worse  than  useless  in  armies  moving  from 
place  to  place.  Their  organization  is  incompatible  with 
the  administration  of  military  rights  and  remedies,  by 
reason  of  local  jurisdiction,  jury  trials,  territorial  limi- 
tations of  process,  and  slowness  of  procedure,  to  say 
nothing  of  the  inexperience  of  learned  jurists  in  mili- 
tary a  flairs. 

*  Vallandigham's  Case.     (Appendix,  88). 
Dynes  vs.  Hoover,  20  How.  81,  82.     (Appendix,  84) 


CHAPTER    IV. 

DIFFERENT    KINDS    OF   MILITARY    TRIBUNALS. 


I.    COURTS   MARTIAL. 


Courts  martial  have  been  recognized  or  established 
by  express  laws  of  Congress. 

The  Act  of  February  28,  1795,  provided  for  calling 
out  the  militia  and  also  for  the  organization  of  courts 
martial,  designating  the  officers  of  whom  they  should 
be  composed,  prescribing  punishments  by  these  tribu- 
nals for  persons  who  should  fail  (in  the  instances 
specified  in  Sect.  5)  to  obey  the  orders  of  the  President. 
These  courts  derived  their  authority,  not  from  any  State 
law,  but  only  from  the  statutes  of  the  United  States.* 

It   is,  however,  not    questioned    that    either  of   the 
States  may  pass  laws  providing  for  the  trial  of  such    • 
delinquents  by  State  courts  martial.f 

The  act  of  April  10,  1806,  enacts  articles  of  war, 
regulates  (Article  64)  the  mode  of  organizing  gen- 
eral courts  martial;  gives  (Art.  65)  the  power  of 
appointing  them  to  general  officers  commanding  an 
army,  or  colonels  commanding  a  separate  department, 
and  institutes  inferior  courts  martial  (Art,  66) ;  limits 


*  Commonwealth  vs.  Irish,  3  S.  &  R.  176. 
S.  C.  5  Hall's  Law  Jour.  476. 
Meade  vs.  Dep.  Marsh.  Va.  Dist.  5  Hall  L.  J.  536. 

t  Houston  vs.  Moore,  3  S.  &  R.  169. 
Martin  vs.  Mott,  12  Wh.  II.  1!). 

270 


280  MILITARY    GOVERNMENT 

and  requires  confirmation  of  sentences  |  Arts.  65,  <;7 ).  and 
provides  (Art.  69)  for  the  appointment  of  prosecuting 
officers  usually  called  Judge  Advocates.  This  act  rear- 
Dlates  the  oaths  of  officers  composing  the  court  ;  the 
oath  oi'  the  Judge  Advocate,  the  punishment  of  the 
accused  for  standing  mute;  it  provides  for  challenges, 
punishes  misbehavior  in  court,  contempts,  or  unbecom- 
ing conduct  of  persons  convicted-  it  lavs  down  rules 
relating  to  testimony  and  oaths  of  witnesses,  and  depo- 
sitions, and  designates  (Sect.  90)  such  crimes  or  miscon- 
duct as  are  punishable  by  courts  martial. 

The  Act  of  Aug.  5,  1861,  gives  power  to  commanders 
of  divisions  or  separate  brigades  to  appoint  general 
courts  martial  in  time  of  war. 

The  decisions  of  these  tribunals  are  required  to  be 
reported  to,  and  to  be  reviewed  by,  some  superior  officer 
who  may  confirm,  modify,  or  set  them  aside.  But  the 
final  judgments  of  courts  martial  are  not  liable  to  be 
reviewed  or  reversed  by  any  judicial  court  of  the  United 
States.* 

When  a  court  martial  has  once  acquired  jurisdiction 
of  the  person  and  the  subject-matter,  that  jurisdiction 
is  exclusive  of  civil  courts  for  that  offence.  But  the 
same  transaction  may  constitute  an  offence  against 
municipal  as* well  as  military  law,  and,  in  such  cases,  the 
offender  is  liable  to  punishment  by  both. 

II.      MILITARY    COURTS     OF     INQUIRY. 

The  Act  of  April  10,  1806,  provides  the  manner  of 
constituting  such  courts,  their  powers  and  proceedings. 
It  recognizes  the  right  of  organizing  them  by  the  gen- 

*  Dynes  vs.  Hoover,  20  How.     (Appendix,  84). 
V  i.i  radigham's  Case.     (Appendix,  S3). 


MILITARY    GOVERNMENT.  281 

erals  or  commanding  officers ;  power  is  conferred  upon 
these  courts  to  summon,  to  compel  attendance,  and  to 
examine  witnesses ;  the  right  of  the  accused  to  cross- 
examine  witnesses  is  secured  ;  and  the  mode  of  authen- 
ticating proceedings  is  prescribed. 

But  courts  of  inquiry  being  liable  to  abuse,  are  pro- 
hibited in  all  cases,  except  when  demanded  by  the 
accused,  or  ordered  by  the  President  of  the  United 
States. 

The  Act  of  March  3,  1863,  Sect.  25,  gives  power  to 
every  Judge  Advocate  of  a  court  of  inquiry  to  issue 
process  to  compel  the  attendance  of  witnesses,  like  that 
which  State,  Territorial,  or  District  Courts  issue  in  places 
where  said  court  of  inquiry  is  held. 

These  and  other  statutes  show  that  this  class  of  mili- 
tary courts  is  fully  recognized  by  the  laws  of  the  United 
States. 

III.        MILITARY     COMMISSIONS,     INSTITUTED      BY     THE     COMMANDER-IN- 
CHIEF,     OR     UNDER    STATUTES. 

Military  commissions  were  first  made  familiar  to  the 
people  of  this  country  by  General  Orders  No.  287, 
issued  by  General  Scott  at  the  head-quarters  of  the 
army,  National  Palace  of  Mexico,  Sept.  17,  1847. 

During  the  occupation  of  Mexico  by  our«army  many 
crimes  were  committed  by  hostile  individuals  against 
soldiers,  and  by  soldiers  against  the  Mexicans,  not  pun- 
ishable by  courts  martial  as  organized  under  the  Articles 
of  War;  and,  as  General  Scott  wrote  in  his  order,  "A 
supplemental  code  is  absolutely  needed.  That  unwrittt  n 
code  is  martial  law,  as  an  addition  to  the  written  military 
code  prescribed  by  Congress  in  the  Rules  and  Articles 
of  War,  and  which  unwritten  code  all  armies  in  hostile 
countries  are  forced   to  adopt,  not  only  for  their  <>\yn 


282  MlI.lTMiV     GOVERNMENT. 

safety,  but  for  the  protection  of  the  unoffending  inhabi- 
tants and  their  property  about  the  theatres  of  military 
operations,  against  injuries  on  the  part  of  the  army, 
contrary  to  the  laws  of  war.  .  .  .  For  this  purpose  it 

is  ordered  that  all  offenders  in  the  matters  aforesaid 
shall  be  promptly  seized,  confined,  and  reported  for 
trial  before  military  commissions  to  bo  duly  appointed, 
etc." 

These  commissions  were  appointed,  governed,  and 
limited,  as  nearly  as  practicable, as  prescribed  for  courts 
martial  ;  their  proceedings  to  be  recorded,  reviewed, 
revised,  disapproved,  or  confirmed,  and  their  sentences 
executed,  all  as  nearly  as  might  be  as  in  the  cases  of 
the  proceedings  and  sentences  of  courts  martial,  "pro- 
vided that  no  military  commission  shall  try  any  case 
dearly  cognizable  by  any  court  martial,  and  provided 
also  that  no  sentence  of  a  military  commission  shall  be 
put  in  execution  against  any  individual  belonging  to 
this  army,  which  may  not  be  according  to  the  nature 
and  degree  of  the  offence,  as  established  by  evidence,  in 
conformity  with  known  punishments  in  like  cases  in 
some  one  of  the  States  of  the  United  States  of  America." 

"  The  administration  of  justice,  both  in  civil  and  crim- 
inal matters,  through  the  ordinary  courts  of  the  country, 
was  nowhere  and  in  no  degree  to  be  interrupted  by  any 
ollicer  or  soldier,  except"  in  certain  specified  cases. 

Martial,  military,  and  civil  or  municipal  law  were 
administered  in  Mexico  by  General  Scott,  under  such 
military  commissions,  with  the  exception  above  stated. 
But  courts  of  this  description  were  instituted  wider  the 
general  war  power  of  the  Commander-in-Chief,  —  a  power 
which  was  fully  conceded  by  the  Supreme  Court  of 
the  United  States,  —  not  under  the  authority  of  Con- 
Congress  has,    however,  recognized  in   express 


MILITARY    GOVERNMENT.  283 

terms  "  military  commissions,"  in  the  act  of  March  5, 
1863,  Chap.  75;  and  having  authorized  the  appointment 
of  a  Judge  Advocate  General,  required  all  proceedings 
of  such  commissions  to  be  returned  to  him  for  revision 
and  record.  This  Act,  Section  30,  gives  military  com- 
missions, equally  with  courts  martial  jurisdiction,  in 
time  of  war,  in  case  of  "  murder,  assault  and  battery 
with  intent  to  kill,  manslaughter,  mayhem,  wounding 
by  shooting  or  stabbing  with  an  intent  to  commit  mur- 
der, robbery,  arson,  burglary,  rape,  assault  and  battery 
with  intent  to  commit  rape,  and  larceny,  when  commit- 
ted by  persons  who  are  in  the  military  service  of  the 
United  States,  and  subject  to  the  articles  of  war." 

Spies  are  also,  by  the  same  Act,  Section  38,  punish- 
able with  death  by  sentence  of  a  military  commission. 

The  several  statutes  above  cited  show  that  Congress, 
in  pursuance  of  its  powers  under  the  Constitution,  has 
recognized  and  established  courts  martial,  courts  of  in- 
quiry, and  military  commissions. 

Courts  of  the  same  denomination,  but  exercising  a 
much  broader  jurisdiction  of  persons  and  subjects,  have 
been  organized  and  established  by  the  President  of  the 
United  States,  under  the  war  powers  delegated  to  him 
by  the  Constitution,  as  Commander-in-Chief  of  the  army 
and  navy  ;  and  the  binding  authority  of  such  courts 
has  been  admitted  and  solemnly  asserted  by  the  Su- 
preme Court  of  the  United  States.  Tribunals  instituted 
by  the  war  power  of  the  President  are  those  through 
which  it  is  most  usual  to  apply  the  laws  of  war  in  ene- 
my's country,  while  hostilities  are  in  progress,  and  for  a 
certain  length  of  time  after  a  declaration  of  peace. 

All  these  tribunals  constitute  usual  and  necessary 
parts  of  the  machinery  of  warfare,  and  are  the  essential 
instruments  of  that  military  government  by  which  alone 
the  permanency  of  conquest  can  be  secured. 


284  MILITARY    GOVERNMENT. 

IV.     OOORTB  OF  CIVIL  JURISDICTION    i  mm  i:   MILITARY     AUTHORITY. 

In  tlir  preceding  pages  it  has  been  Bhown  that  the  righl 
of  tlit>  President,  as  Commander-in-Chief  of  thearmy,to 
organize  and  administer  government  in  all  its  branches 
by  military  power,  in  time  of  war.  over belligerenl  dis- 
tricts of  country  recovered  from  a  public  enemy,  and  his 
right  to  subdivide  and  delegate  those  powers  to  different 
persons  acting  under  his  orders,  are  sanctioned  hy  the 
Constitution  and  laws  of  Congress,  by  the  decisions  of 
the  Supreme  Court,  and  by  our  practice  in  former  wars. 

The  same  rights  have  been  exercised  during  the  pres- 
ent civil  war.  President  Lincoln  has  appointed  as  Gov- 
ernor of  the  State  of  Louisiana,  Brigadier-General  Geo. 
F.  Shepley ;  as  Judge  of  the  Provisional  Court  of  the 
same  State.  Hon.  Charles  A.  Peabody  ;:;:  as  Military  Com- 
mander of  the  department  containing  Louisiana,  Maj.- 
Gen.  B.  F.  Butler;  and  General  Butler  has  appointed  to 
act  under  him  a  Sequestration  Committee. 

The  commissions  and  orders  under  which  they  have 
acted  are  as  follows  :  — 

COMMISSION    AS    MILITARY    GOVERNOR. 

Wak  Department,  Washington  Citt,  I 

.June  3,  18G2.  j 

lf< in.  George  B.  Shepley,  &c.  &c. 

Sib:  —  You  are  hereby  appointed  Military  Governor  of  the  State  of  Lou- 
isiana, with  authority  to  exercise  and  perform,  within  the  limits  of  that  State, 
all  and  singular,  the  powers,  duties,  and  functions  pertaining  to  the  office  of 
Military  Governor  (including  the  power  to  establish  all  necessary  offices  and 
tribunals  and  suspend  the  writ  of  habeas  corpus),  during  the  pleasure  of  the 
President,  or  until  the  loyal  inhabitants  of  that  State  shall  organize  a  civil 
government  in  conformity  with  the  Constitution  of  the  United  States. 
By  the  President. 

E.   M.  STANTON, 

Secretary  of  War. 

*  The  President  has  more  recently  appointed  as  a  Judge  of  the  Distinct 
Court  of  the  United  States  for  the  Eastern  District  of  Louisiana,  Hon.  (has- 
A.  Duvall,  whose  nomination  has  been  confirmed  by  the  Senate.  He  has  de- 
cided  many  important  prize  cases. 


MILITARY    GOVERNMENT.  285 


EXECUTIVE     ORDER,    ESTABLISHING     A     PROVISIONAL 
COURT    IN    LOUISIANA. 

Executive  Mansion,        ) 
Washington,  October  20,  1862.  j 

The  insurrection  which  has  for  some  time  prevailed  in  several  of  the  States 
of  this  Union,  including  Louisiana,  having  temporarily  subverted  and  swept 
away  the  civil  institutions  of  that  State,  including  the  judiciary  and  judicial 
authorities  of  the  Union,  so  that  it  has  become  necessary  to  hold  the  State  in 
military  occupation;  and  it  being  indispensably  necessary  that  there  shall  be 
some  judicial  tribunal  existing  there  capable  of  administering  justice,  I  have, 
therefore,  thought  it  proper  to  appoint,  and  I  do  hereby  constitute  a  Provis- 
ional Court,  which  shall  be  a  Court  of  Record  for  the  State  of  Louisiana,  and 
I  do  hereby  appoint  Charles  A.  Peabody,  of  New  York,  to  be  a  Provis- 
ional Judge  to  hold  said  Court,  with  authority  to  hear,  try,  and  determine  all 
causes,  civil  and  criminal,  including  causes  in  law,  equity,  revenue,  and  ad- 
miralty, and  particularly  all  such  powers  and  jurisdiction  as  belong  to  the 
District  and  Circuit  Courts  of  the  United  States,  conforming  his  proceedings, 
so  far  as  possible,  to  the  course  of  proceedings  and  practice  which  has  been 
customary  in  the  Courts  of  the  United  States  and  Louisiana  — his  judgment 
to  be  final  and  conclusive.  And  I  do  hereby  authorize  and  empower  the  said 
Judge  to  make  and  establish  such  rules  and  regulations  as  may  be  necessary 
for  the  exercise  of  his  jurisdiction,  and  to  appoint  a  Prosecuting  Attorney, 
Marshal,  and  Clerk  of  the  said  Court,  who  shall  perform  the  functions  of  At- 
torney, Marshal,  and  Clerk,  according  to  such  proceedings  and  practice  as 
before  mentioned,  and  such  rules  and  regulations  as  may  be  made  and  estab- 
lished by  said  Judge.  These  appointments  are  to  continue  during  the  pleas- 
ure of  the  President,  not  extending  beyond  the  military  occupation  of  the  city 
of  New  Orleans,  or  the  restoration  of  the  civil  authority  in  that  city  and  in 
the   State  of  Louisiana.     These  officers  shall  be  paid  out  of  the  contingent 

fund  of  the  War  Department,  compensation  as  follows : 

Such  compensations  to  be  certified  by  the  Secretary  of  War.  A  copy  of  this 
order,  certified  by  the  Secretary  of  War,  and  delivered  to  such  Judge,  shall 
lie  deemed  and  held  to  be  a  sufficient  commission.  Let  the  seal  of  the  United 
States  be  hereunto  affixed. 

ABRAHAM  LINCOLN. 
By  the  President : 

William  H.  Seward,  Secretary  of  StaU\ 


SEQUESTRATION     COMMISSION. 
GENERAL  ORDERS  \  HEAD-QUARTERS,   DEPARTMENT  of   rill-  GCLF,  j 

No.  oi.  i  New  Orleans,  November  9, 1862.        I 

The  Commanding  General  being  informed,  and  believing,  thai  the  district 
west  of  the  Mississippi  River,  lately  taken  possession  <>f  by  the  United  States 
troops,  is  most  largely  occupied  by  persons  disloyal  to  the  United  States,  and 
whose  property  has  become  liable  to  confiscation   under  the  acts  of  C rcaa 


MIl.ri'MJN     GOVERNMENT. 


and  the  proclamation  of  the  President,  and  thai  sales  and  transfers  of  said 
property  are  being  made  for  the  purpose  ot  depriving  the  Government  of  the 
game,  has  determined,  in  order  to  Becure  ili«'  rights  of  all  persons  as  well  as 
the  Government,  and  for  the  purpose  of  enabling  the  crops  now  grow- 
to  be  taken  care  of  and  secured,  and  the  unemployed  laborers  to  1"'  set  at 
work,  and  | in »\ i^i. >n  made  for  the  payment  of  their  tabor, — 

I  order,  as  follows  :  — 

1.  That  all  tin-  property  within  the  district  to  be  known  as  the  "  District 
I . .  mrche,"  be  and  are  hereby  Bequestered,  and  all  sales  or  transfers  thereof 
forbidden,  ami  will  be  held  invalid. 

II  The  District  of  Lafourche  will  comprise  all  the  territory  in  the  State 
.  uisiana  lying  west  of  the  Mississippi  River,  except  tin'  parishes  of  Pla- 

quemincs  and  Jefferson. 
'    III.       That 

Major  Joseph  M.  Bell,  Provost  Judge,  President, 

Lieut.  Col.  J.  B.  Kinsman,  A.  I).  C.\ 

Capt.  1't  1  111;  t  ?5th  X.  V.  Vols.),  Provost  Marshal  of  the  District, 
be  a  commission  to  take  possession  of  the  property  in  said  district,  to  make 
an  accurate  inventory  of  the  same,  and  gather  up  and  collect  all  such  per- 
s  mal  property,  ami  turn  over  to  the  proper  officers,  under  their  receipts,  such 
of  said  property  as  may  be  required  for  the  use  of  the  United  States  army; 
to  colleet  together  all  the  other  personal  property,  and  bring  the  same  to  New 
Orleans,  and  cause  it  to  be  sold  at  public  auction  to  the  highest  bidders,  and, 
after  deducting  the  necessary  expenses  of  care,  collection,  and  transportation, 
to  hold  the  proceeds  thereof  subject  to  the  just  claims  of  loyal  citizens  and 
those  neutral  foreigners  who  in  good  faitli  shall  appear  to  be  the  owners  of 
the  same. 

IV.  Every  loyal  citizen  or  neutral  foreigner  who  shall    Ijc  found  in  actual 

1  and  ownership  of  any  property  in  said  district,  not  having  acquired 
the  same  by  any  title  since  the  18th  day  of  September  last,  may  have  his 
property  returned  or  delivered  to  him  without  sale,  upon  establishing  his  con- 
dition to  the  judgment  of  the  Commission. 

V.  All  sales  made  by  any  person  not  a  loyal  citizen  or  foreign  neutral, 
since  the  18th  day  of  September,  shall  be  held  void,  and  all  sales  whatever, 
made  with  the  intent  to  deprive  the  Government  of  its  rights  of  confiscation, 
will  lie  held  void,  at  what  time  soever  made. 

VI.  The  Commission  is  authorized  to  employ  in  working  the  plantation  of 
any  person  who  has  remained  quietly  at  his  home,  whether  he  be  loyal  or  dis- 
loyal, the  negroes  who  may  be  found  in  said  district,  or  who  have,  or  may 
hereafter,  claim  the  protection  of  the  United  States,  upon  the  terms  set  forth 
in  the  memoranda  of  a  contract  heretofore  offered  to  the  planters  of  the  pa*- 
ishes  of  Plaquemines  and  St.  Bernard,  or  white  labor  maybe  employed  at  the 
election  of  the  Commission. 

VII.  The  Commissioners  will  cause  to  be  pur:  based  such  supplies  as  may 
be  beeessary,  and  convey  them  to  such  convenient   depots  as  to  supply  the 


MILITARY    GOVERNMENT.  287 

planters  in  the  making  of  the  crop  ;  which  supplies  will  be  charged  against 
the  crop  manufactured,  and  shall  constitute  a  lien  thereon. 

VIII.  The  Commissioners  are  authorized  to  work,  for  the  account  of  the 
United  States,  such  plantations  as  are  deserted  by  their  owners,  or  are  held  by- 
disloyal  owners,  as  may  seem  to  them  expedient,  for  the  purpose  of  savino-  the 
crops. 

IX.  Any  persons  who  have  not  been  actually  in  arms  against  the  United 
States  since  the  occupation  of  New  Orleans  by  its  forces,  and  who  shall  re- 
main peaceably  upon  their  plantations,  affording  no  aid  or  comfort  to  the 
enemies  of  the  United  States,  and  who  shall  return  to  their  allegiance,  and 
who  shall,  by  all  reasonable  methods,  aid  the  United  States  when  called  upon, 
may  be  empowered  by  the  Commission  to  work  their  own  plantations,  to  make 
their  own  crop,  and  to  retain  possession  of  their  own  property,  except  such  as 
is  necessary  for  the  military  uses  of  the  United  States.  And  to  all  such  per- 
sons the  Commission  are  authorized  to  furnish  means  of  transportation  for 
their  crops  and  supplies,  at  just  and  equitable  prices. 

X.  The  Commissioners  are  empowered  and  authorized  to  hear,  determine, 
and  definitely  report  upon  all  questions  of  the  loyalty,  disloyalty,  or  neutrality 
of  the  various  claimants  of  property  within  said  district ;  and  further,  to  re- 
port such  persons  as  in  their  judgment  ought  to  be  recommended  by  the  Com- 
manding General  to  the  President  for  amnesty  and  pardon,  so  that  they  may 
have  their  property  returned ;  to  the  end  that  all  persons  that  are  loyal,  may 
suffer  as  little  injury  as  possible,  and  that  all  persons  who  have  been  heretofore 
disloyal  may  have  opportunity  now  to  prove  their  loyalty  and  return  to  their 
allegiance,  and  save  their  property  from  confiscation,  if  such  shall  be  the  de- 
termination of  the  Government  of  the  United  States. 

By  command  of  Major-General  Butler. 

GEO.  C.  STRONG, 

A.  A.G.,  Chief  of  Staff. 


JURISDICTION    OF    COURTS    APPOINTED    BY    MILITARY   AUTHORITY    TO 
ADMINISTER    JUSTICE. 

Military  courts,  being  lawfully  established  by  virtue 
of  the  war  power  of  the  President,  as  a  part  of  his  mili- 
tary government  over  the  territory  of  a  public  enemy, 
with  jurisdiction  over  all  persons  and  things  within  the 
district  limited  in  his  commission  to  the  judge,  have 
the  right  to  make  and  enforce  rules  for  the  creation  and 
service  of  process,  and  for  all  other  proceedings  before 
them.  Their  judgments  may  be  rendered  subject  to 
appeal,  if  so  directed  by  the  President.    The  orders  and 


Mlill'VKV     GOT  1  KNM1NT. 

decisions  of  the  judges  will  be  final  and  conclusive  upon 
all  subjects,  matters,  and  persons  over  whom  they  have, 
by  the  terms  of  their  commissions,  exclusive  and  final 
jurisdiction.  From  such  decisions  and  judgments  there 
is  do  appeal  to  any  judicial  court  of  the  United  States.* 
They  must  be  forever  recognized  by  all  departments  of 
rernmenl  as  valid  and  conclusive. 

I>"l  -     Mil:    CONSTITUTION   PROHIBIT   SUCH   PROCEDURES? 

The  question  may  be  asked  whether  courts  admin- 
istering municipal  or  local  laws,  condemning  criminals 
without  previous  indictment,  trial  by  jury,  limitation  of 
place  in  which  trial  shall  be  held,  and  without  right  of 
appeal,  are  not  within  the  prohibitions  of  the  Consti- 
tution. 

The  clauses  referring  to  these  subjects  are  as  fol- 
lows :  — 

Amendment,  Art.   V. 

"  No  person  shall  be  nELD  to  answer  for  a  capital  or  otherwise  infamous 
crime  unless  on  a  presentment  or  indictment  of  a  Grand  Jury,  except  in  cases 
arising  in  the  land  or  naval  forces;  or  in  the  militia  when  in  actual  service  in 
time  of  war  or  public  danger,"  etc. 

Amendment,  Art.   VI. 

•  In  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy 
and  public  trial  by  an  impartial  jury  of  the  State  and  district  wherein  the 
rrime  shall  have  been  committed,  which  district  shall  have  been  previously 
ruined  by  law,"  etc. 

Amendment,  Art.  VII. 

••  In  suits  at  common  law,  where  the  value  in  controversy  shall  exceed 
ty  dollars,  the  right  of  trial  by  jury  shall  be  preserved;   and  no  fact 
tried  l>v  a  jury  shall   be  otherwise  reexamined  in  any  court  of  the  United 
Si  ites,  than  according  to  the  rules  of  the  common  law." 

*  Dynes  v.  Hoover,  20  How.     (See  Appendix.) 
Vallandigham's  Case.     (See  Appendix.) 


MILITARY    GOVERNMENT.  289 

To  obtain  a  correct  view  of  the  meaning  and  appli- 
cation of  the  fifth,  sixth,  and  seventh  articles  of  the 
Amendment  above  cited,  it  will  be  necessary  to  observe 
that  the  citizens  owing  allegiance  to  the  Government  of 
the  United  States  are  by  civil  territorial  war  divided 
into  classes  of  persons  having  different  rights  and  lia- 
bilities. 

First,  the  inhabitants  of  that  section  of  the  country 
which  upholds  that  Government;  and,  second,  the  inhabi- 
tants of  that  section  of  country  who  have  become  pub- 
lic enemies ;  also,  there  are  two  classes  of  loyal  citizens, 
—  first,  those  who  are  engaged  in  the  military  service ; 
and,  second,  those  who  are  not. 

Military  courts  may  be  in  two  different  conditions :  — 

First,  ordinary  courts  organized  and  acting  under  pro- 
visions of  statutes,  and  administering  the  laws  of  war 
upon  persons  engaged  in  our  military  service  ;  and, 
second,  courts  established  by  the  war  power  of  the 
Commander-in-Chief,  and  administering  the  domestic 
government  of  territorial  public  enemies  in  a  hostile 
district  of  country  held  by  our  military  power. 

None  of  these  provisions  of  the  Constitution  have 
any  application  to  military  courts  or  the  proceedings  thereof. 
They  relate  only  to  judicial  poiver  conferred  thereby  on 
'judicial  courts. 

The  fifth  article  expressly  excludes  cases  arising  in 
the  land  and  naval  forces,  among  our  own  citizen  sol- 
diers and  seamen. 

Art.  6th  secures  a  jury  trial  in  open  court  in  Hie 
State  and  district  where  the  crime  was  committed,  and 
refers  only  to  a  judicial  proceeding  relating  to  crimes 
in  the  ordinary  judicial  courts. 

Art.  7th  refers  only  to  proceedings  in  common  law 
courts. 


BCIUTABl     GOVERNMENT. 

These  regulations  of  procedures  in  common  law  and 
other  ordinary  courts  apply  to  tribunals  of  a  character 
totally  different  from  military  courts.  The  Constitution 
sanctions  courts  military,  and  courts  judicial,  and  it  re- 
quires the  latter  to  be  constituted  according  to  these 
ami  .  -.  while  the   former  are  under  no  such   re- 

st] ictions. 

The  Supreme  Court  recognize  this  distinction,  and 
say.  in  the  case  of  Dynes  vs.  Hoover,*  "These  provisions 
show  that  Congress  has  the  power  to  provide  for  the 
trial  and  punishment  of  military  and  naval  offences  in 
the  manner  then  and  now  practised  by  civilized  na- 
tions, and  that  the  power  to  do  so  is  given  without  any 
connection  between  it  and  the  third  article  of  the  Con- 
stitution, defining  the  judicial  power  of  the  United 
States;  indeed,  that  the  two  powers  are  entirely  inde- 
pendent of  each  other." 

Thus  it  is  evident  that  whoever  is  subject  to  the 
jurisdiction  of  courts  martial,  etc.,  can  claim  none  of 
the  benefits  of  these  Articles  of  Amendment,  and  that 
citizens  of  the  United  States  who  have  been  declared 
by  our  Government  public  enemies  of  the  country,  have 
no  rights  guaranteed  to  them  under  any  provisions  of 
our  Constitution. 

THE     BIGHTS     OF    REBELS. WHAT    THEY    CLAIM. 

To  form  correct  opinions  in  relation  to  the  rights  of 
persons  inhabiting  that  part  of  the  country  now  sub- 
jected to  the  government  de  facto  of  the  so-called  Con- 
federate States,  it  is  proper  to  ascertain  what  rights  they 
claim. 

I  la  vino;  founded  new  governments  within  the  terri- 


- 


*  20  Howard,  Rep.  79.     (See  Appendix.) 


MILITARY   GOVERNMENT. 


291 


tory  over  which  our  national  sovereignty  extends,  under 
the  asserted  right  of  revolution  ;  having  ratified  those 
governments,  both  confederate  and  state,  by  popular  con- 
ventions, by  legislative  acts  of  secession,  by  submission, 
by  profession  of  allegiance,  and  by  all  other  known 
modes  of  expressing  assent  and  adherence  thereto,  they 
have  publicly  withdrawn  from  and  disclaimed  all  allegi- ' 
ance  to  the  United  States.  They  demand  that  we  should 
treat  them  as  an  independent  nation.  They  not  only 
assert  no  right  to  protection  under  our  constitution,  but 
wage  open,  barbarous,  offensive  war  against  the  inhabi- 
tants of  the  loyal  States  and  against  our  government. 
They  seek  recognition  from  and  alliance  with  foreign 
countries,  and  if  successful  in  arms,  they  will  be  entitled 
to  compel  the  United  States  to  submit  to  them  as  con- 
querors. Our  territory,  our  government,  and  our  popu- 
lation will  then  be  subjected  to  their  control.  Their 
laws  and  their  institutions  will  then  be  forced  upon  us, 
and  nothing  but  the  overthrow  and  destruction  of  the 
public  enemy  can  prevent  this  result. 

They  have  already  been  recognized  by  leading  Euro- 
pean powers  as  belligerents.  They  have  demanded  and 
have  received  from  our  government,  the  concession  of 
many  belligerent  rights  ;  as  for  instance,  the  exchange  of 
prisoners  of  war  captured  on  land  ;  the  release  of  con- 
federate seamen  condemned  for  piracy ;  and  the  recog- 
nition of  flags  of  truce,  and  the  blockade  of  seaports, 
under  the  law  of  nations. 

The  claim,  so  far  as  it  can  be  ascertained,  of  the  con- 
federate de  facto  government,  as  against  the  United 
States,  is,  1st,  The  concession  of  full  belligerent  rights, 
and,  2d,  Their  recognition  as  an  independent  nation. 
No  demand  of  any  right  under  our  constitution  or  our 
laws  has  ever  been  made  by  the  confederates.     Those 


292  Mil  I  PARI    GOT  ERNMENT. 

whudiMiv  their  liability  to  perform  the  obligations  im- 
posed on  Bubjects  of  the  United  Stales,  have  nut  fallen 
into  the  absurdity  of  claiming  the  privileges  of  subji  cts. 
The  confederates  claim   only  such   rights  as  the  law  of 

war.  which  Is  a  pari  of  the  law  of  nations,  secures  to 
them.  That  claim  this  governmenl  is  bound  to  concede, 
whenever  it  determines  to  treat  them,  not  as  subjects, 
l>ut  as  belligerents. 

Have  the  insurgents  admitted  liability  on  their  pari 
to  regard  our  laws  or  constitution  in  carrying  on  war 
against  us?  Have  they  not  forsworn  their  allegiance  to 
this  government,  and  can  they  claim  protection  while 
denying  allegiance?  Can  an  enemy  justly  assert  any 
right  under  a  constitution  he  is  lighting  to  destroy? 
The  insurgents  deem  themselves  public  enemies  to  the 
United  States  in  open  war,  and  admit  their  liability  to 
abide  by  the  stern  rules  of  belligerent  law.  They  de- 
mand no  privilege  under  a  constitution  which,  by  com- 
mencing war.  they  have  violated  in  every  clause. 

Is  it  not  remarkable  that  persons  who  profess  to  ad- 
here to  our  government,  should  set  up  pretensions  on 
behalf  of  our  adversaries  which  our  adversaries  them- 
selves disclaim  ? 

RIGHTS     CONCEDED     TO     INSURGENTS. 

Whoever  makes  war  against  a  nation  renounces  all 
right  to  its  protection.  The  people  of  the  United 
State-  have  founded  a  government  to  secure  the  "gen- 
eral welfare,"  by  preventing  enemies,  foreign  or  domes- 
tic, from  destroying  the  country.  They  did  not  frame  a 
constitution  so  as  to  paralyze  the  power  of  self-defence. 
They  have  not  forged  weapons  for  their  adversaries,  or 
manacles  for  themselves. 

The  Constitution,  in  fact,  guarantees  no  rights,  but  only 


MILITARY    GOVERNMENT.  293 

declares  the  liabilities,  of  public  enemies,  —  if  they  are 
invaders,  that  they  shall  be  repelled  ;  if  they  are  insur- 
gents, that  they  shall  be  put  down  by  force ;  if  they 
are  rebels,  banded  together  in  territorial  civil  war,  then 
that  civil  war  shall  be  fought  through,  and  conquest  and 
subjugation  shall  reestablish  lawful  government.  Any 
other  result  must  be  a  destruction  of  the  country,  and 
therefore  an  overthrow  of  the  Constitution. 

In  the  enforcement  of  these  hostile  measures  against 
public  enemies,  the  most  liberal  concession  demanded 
by  the  code  of  civilized  warfare,  is  that  traitors  should 
be  deemed  belligerents  ;  but,  while  enjoying  the  immu- 
nities, they  must  be  subject  to  the  liabilities,  of  war.* 

Therefore,  whether  the  Articles  of  Amendment  of  the 
Constitution,  previously  cited,  apply  to  martial  proceed- 
ings or  not,  is  immaterial  in  determining  the  rights  of  a 
hostile  people  engaged  in  civil  Avar  against  the  United 
States. 

The  appeal  to  arms  and  the  laws  of  war  was  forced 
upon  us,  because  the  insurrectionary  districts  refused  to 
submit  to  the  Constitution.  They  cannot,  therefore,  justly 
complain  that  under  the  laws  of  war  they  are  no  longer 
sheltered  by  that  constitution  which  they  have  spurned. 

ARE    THE   INHABITANTS  OP  INSURRECTIONARY  STATES  PUBLIC  ENEMIES? 

Whether  persons  inhabiting  insurrectionary  States  are 
in  law  to  be  deemed  "  public  enemies,"  is  apolitical  ques- 
tion, which,  like  similar  questions  arising  under  our  form 
of  government,  is  to  be  determined,  not  by  judicial  courts 
of  law,  but  by  the  Legislative  and  Executive  Depart- 
ments.^" 

*  See  the  Prize  Cases,  2  Black's  R.  G38.     War  Powers,  141. 

\  Some  of  the  consequences  flowing  from  the  status  of  a  public  enemy,  have 
been  stated  in  a  previous  publication.  (See  War  Powers.  8th  Ed.  pp.  23G- 
244.) 


I?'.1  1  Mil  it  \i;v   GOVERNMENT. 

Among   those   subjects  which,  as  the   Supreme   Court 
>f  the  United  States  has  already  decided,  are  finally  to 
be  determined  by  the  political  departments  of  govern- 
ment, art-  the  following,  viz:  — 

v  of  boundary  between  the  United  States  and 
foreign  countries." 

"  The  question  like  this,"  says  Chief  Justice  Marshall,  "  respecting  boun- 
dary of  nations,  is.  as  Iris  been  truly  said,  more  a  political  than  a  legal  ques- 
tion; and,  in  its  discussion,  bl  of  every  country  must  respect  the 
pronounced  will  of  the  legislature."     Taney  C.  J.  says:  "The  legislative 

and  i  branches  having  decided  the  question,  the  c ts  of  the  United 

ere  bound  to  regard   the   boundary  determined  on   by  them  as  the 
true  one."  f 

Questions  as  tp  the  sovereignty  of  any  foreign  country  or  its 
independence. 

'•'To  what  sovereignty  any  island  or  country  belongs 
is  a  question  which  often  arises  before  courts." 

"  And  can  there  be  a  doubt  that  when  the  executive 
branch  of  the  government,  which  is  charged  with  our 
foreign  relations,  shall,  in  its  correspondence  with  a  for- 
1  nation,  assume  a  fact  in  regard  to  the  sovereignty  of 
any  island  or  country,  it  is  conclusive  on  the  judicial 
department?  And  in  this  view  it  is  not  material  to  in- 
quire whether  the  Executive  is  right  or  wrong.  It  is 
enough  to  know  that,  in  the  exercise  of  his  constitutional 
functions,  he  has  decided  the  question.  Having  done  this, 
under  the  responsibilities  which  belong  to  him,  it  is  ob- 
ligatory on  the  people  and  government  of  the  United 
States." 

u  In  the  cases  of  Foster  vs.  Nelson,  and  Garcia  vs.  Lee, 
this  Court  have  laid  down  the  rule  that  the  action  of  the 

*  Foster  &  Elam  wt.  Nelson,  2  Pet.  307. 
■(•United  States  vs.  Percheman,  7  Pet.  51. 
United  States  vs.  Arrcdondo  (1832),  6  Pet.  711. 

Garcia  «.  Lee,   12  Pet.  516,  517,  520,  522. 


MILITARY    GOVERNMENT.  295 

political  branches  of  the  government,  in  a  matter  that  belongs 
to  them,  is  conclusive."  * 

Questions  as  to  the  recognition  of  State  governments  in  the 
Union.  m 

Whether  the  government  of  Ehode  Island  was  the 
duly  const!'!'!,  d  government  of  that  State,  was  a  question 
which  belonged  to  the  political  and  not  to  the  judicial 
power,  so  that  the  Circuit  Court  of  the  United  States 
had  not  the  power  to  try  and  determine  this  question, 
so  far  as  the  United  States  was  concerned. 

Congress  has  delegated  to  the  President,  by  the  Act 
of  Feb.  28,  1795,  the  power  to  decide  for  the  purposes 
of  that  act,  whether  a  government  organized  in  a  State 
is  the  duly  constituted  government  of  that  State,  and, 
after  he  has  decided  this  question,  the  courts  of  the 
United  States  are  bound  to  follow  his  decision.-]* 

Questions  as  to  the  status  of  foreign  nations  whose  prov- 
inces or  dependencies  are  in  revolution  — foreign  invasion 
of  our  own  country  —  and  insurrection,  or  rebellion,  or  civil 
war,  at  home,  and  the  status  of  those  engaged  therein,  are 
political  questions  determinable  by  the  executive  and 
legislative  branches  of  our  government.  % 

*  Williams  vs.  Suffolk  Ins.  Co.  13  Peters,  S.  C.  R.  420  (McLean  J.) 
See  also  Gelston  vs.  Hoyt,  3  Wheaton,  246,  United  States  vs.  Palmer,  3 
Wheaton,  610. 

f  Luther  vs.  Borden,  7  Howard,  S.  C.  R.  40,  42,  43,  44. 

J  Luther  vs.  Borden,  7  Howard,  40,  44.  Lawrence's  Wheaton,  514.  Marl  in 
vs.  Mott,  12  Wheaton,  29,  30.  Law  Reporter,  July,  1861,  148.  The 
;' Tropic  Wind,"  Op.  of  Judge  Dunlop.  The  prize  cases  "  Hiawatha "  and 
others.  2  Black.  War  Powers,  8th  ed.  141  &  215.  See  also  charge  of  Nelson 
J.  on  the  trial  of  the  officers,  etc.,  of  the  Savannah,  p.  371.  In  this  case  the 
rebel  privateer  put  in  as  a  defence  his  commission  to  cruise  under  the  con- 
federate flag;  and  the  same  defence  was  made  in  Philadelphia  by  other 
persons  indicted  for  piracy.  In  both  cases  it  was  held  that  the  courts  must 
follow  the  decision  of  the  executive  and  legislative  departments  in  determining 
the  political  status  of  the  Confederate  States.  See  also  Smith's  Trial,  p.  96. 
Santissima  Trinidad,  7  Wheaton,  305.  Upton's  Maritime  Warfare  and  Prize, 
2d  ed.,  pp.  44  to  107. 


Mil  \\  \  .\    GOVERNMEN  l. 

Therefore,  it  will  be  the  province  <>f  the  political  de- 
partments of  cur  government  to  decide,  among  other 
questions,  — 

1.  Whether  tin1  Confederate  States  shall  have  the 
status  of  belligerents. 

'2.  Whether  they  have  the  status  of  public  enemies. 

'.',.  Whether  local  governments  to  be  formed  within 
the  territory  now  in  rebellion  shall  be  recognized. 

I.  Whether  and  when  a  state  of  peace  shall  be  de- 
clared or  recognized. 

5.  Whether  the  Confederate  States  shall  be  recog- 
nized by  receiving  their  commissioners,  or  by  acknowl- 
edging their  independence. 

On  these  and  similar  questions  the  courts  are  bound 
to  follow  the  decisions  of  the  President  and  of  Congress. 


THE    PRESIDENT. 


The  action  of  the  Executive  Department  has 
stamped  as  "public  enemies"  all  persons  residing  in 
the  insurrectionary  States. 

The  President  issued  a  proclamation  on  the  15th 
April,  1861,  which  declares  that  the  laws  had  been  op- 
posed and  their  execution  obstructed  for  some  time 
past,  in  certain  States,  by  combinations  too  powerful  to 
be  suppressed  by  the  ordinary  course  of  judicial  pro- 
ceedings. He  called  out  75,000  of  the  State  militia  in 
order  to  suppress  said  combinations. 

On  the  19th  of  April,  18G1,  he  proclaimed  a  blockade 
of  the  ports  within  certain  States,  in  pursuance  of  the 
statutes  of  the  United  States  and  the  laivs  of  nations  in 
such  case  provided,  and  gave  warning  that  vessels  break- 
ing or  attempting  to  break  that  blockade  should  be 
captured  and  condemned  as  lawful  prize.  He  also  declared 
that  any  persons  who,  under  pretended  authority  of  said 
States,  should  molest  any  United  States  vessel,  should  be 


MILITARY    GOVERNMENT.  297 

deemed  pirates.  This  blockade  was,  by  a  subsequent 
proclamation  of  April  27,  1861,  extended  to  other 
States. 

By  the  proclamation  of  May  10,  1861,  he  suspend- 
ed the  privilege  of  the  writ  of  habeas  corpus  in  the 
islands  on  the  coast  of  Florida. 

On  the  16th  of  August,  1861,  in  pursuance  of  an 
Act  of  Congress,  he  declared  "  that  the  inhabitants  of 
the  States  of  Georgia,  South  Carolina,  Virginia,  North 
Carolina,  Tennessee,  Alabama,  Louisiana,  Texas,  Arkan- 
sas, Mississippi,  and  Florida  (excepting  the  inhabitants 
of  Western  Virginia,  etc.),  are  in  a  state  of  insurrection 
against  the  United  States,  and  that  all  commercial  intercourse 
between  the  same  and  the  inhabitants  thereof,  with  the  excep- 
tions aforesaid,  and  the  citizens  of  other  States,  and  other  parts 
of  the  United  States,  is  unlawful,  and  will  remain  unlawful  until 
such  insurrection  shall  cease,  or  has  been  suppressed."  He  then 
decltiYes  forfeiture  of  goods,  or  conveyances  thereof,  going 
to  said  States,  and,  after  fifteen  days,  of  all  vessels  belonging 
in  ivhole  or  in  part  to  ang  inhabitant  of  any  of  said  States 
(except  as  aforesaid),  wherever  found. 

On  the  1st  of  July,  1862,  he  again  declared  the  same 
States  in  insurrection  and  rebellion,  so  that  the  taxes  could 
not  be  collected  therein,  in  pursuance  of  the  Act  of 
1861,  Chapter  45. 

On  the  25th  of  the  same  month,  he  gave  a  further 
warning  under  the  provisions  of  the  sixth  section  of 
the  Act  of  July  17,  1862,  requiring  rebels  to  "  return  to 
their  proper  allegiance  to  the  United  Slates,  on  pain  of  for- 
feitures and  seizures,"  as  provided  for  in  said  Act. 

The  proclamation  of  Sept.  22,  1862,  was  made  by 
the  President  as  an  Executive  officer  and  as  Commander- 
in-Chief  of  the  Army  and  Navy,  "that  the  ivar  will  be 
prosecuted  hereafter  as  heretofore  for  the  purpose,"  etc.; 


Mil  i  [  \i:\    Q0\  i  RNMENT. 

that  slaves  in  8  -  which  should  been  rebellion  on  the 
firsl  ilav  of  the  following  January  Bhould  be  free,  and 
thai  In-  would,  bv  subsequent  proclamation,  designate 
such  States;  and  al  thai  date  (January  1,  L863),  the 
President  did  designate  such  Stairs,  and  did  declare 
u  that  all  persons  held  as  slaves  within  said  States,  etc.,  arc 
and  hereafter  shall  be  free,"  and  "  that  the  executive 
government  of  the  United  States, including  the  military 
and  naval  authorities  thereof,  will  recognize  and  main- 
tain the  freedom  of  said  persons." 

From  an  examination  of  these  proclamations  issued 
by  President  Lincoln,  by  virtue  of  his  executive  power 
and  as  a  military  chief,  it  cannot  be  doubted  that  in  the 
most  solemn  and  formal  manner  he  has  recognized  the 
inhabitants  of  the  insurrectionary  States  as  in  civil  war, 
and  therefore  as  public  enemies.  His  proclamation  char- 
acterizes these  hostilities  as  "  the  war  now  prosecuted;" 
he  requires  the  rebels  to  "return  to  their  proper  alle- 
giance to  the  United  States,"  admitting  that  they  have 
renounced  such  allegiance ;  in  all  his  proclamations,  ex- 
centm"-  the  first,  he  treats  the  inhabitants  of  the  rebellious 
States  as  in  sirniU  statu  (with  specified  exceptions  only), 
and  in  the  proclamation  of  Jan.  1,  1863,  no  exceptions 
are  made  of  any  class  of  persons  within  the  designated 
districts. 

The  Executive  Department  has  thus  definitely  settled 
the  question  that  all  inhabitants  of  the  designated  States 
are  public  enemies,  —  First,  by  proclamations  depriving 
them  of  slaves,  of  ships,  and  of  property  used  in  com- 
merce ;  by  a  blockade  and  a  declaration  of  non-inter- 
course ;  by  claiming  against  them  the  rights  of  tear ; 
and  by  a-serting  that  the  existing  hostilities  are  "  war." 
Second,  by  extending  to  the  insurgents  the  usual  rights 
and  privileges  of  a  belligerent  public  enemy ;  as  by  re- 


MILITARY   GOVERNMENT.  209 

lease  of  captured  pirates  (under  the  order  of  the  Presi- 
dent issued  from  the  State  Department)  as  prisoners  of 
war,*  by  exchange,  by  cartel,  of  prisoners  of  war  captured 
on  land,  by  claiming  the  right  of  retaliation,  and  by  va- 
rious other  acts,  which  are  legitimate  in  the  conduct  of 
the  war,  but  irreconcilable  with  the  assumption  that  the 
United  States  are  not  engaged  in  war,  but  only  in  en- 
forcing the  laws  against  certain  criminals  who  have 
violated  certain  statutes  by  engaging  in  insurrection  or 
rebellion. 

If  these  acts  and  these  proclamations  do  not  show  that 
the  Executive  Department  has  declared  and  determined 
the  status  of  the  inhabitants  in  insurrection  to  be  that  of 
public  enemies,  it  would  be  difficult  to  conceive  of  any 
course  of  executive  proceedings  that  would  have  had  that 
effect.f 

CONGKESS. 

The  action  of  the  Legislative  Department,  which  has 
been  in  harmony  with  that  of  the  President,  has  in  like 
manner  definitively  pronounced  the  inhabitants  of  insur- 
rectionary States  to  be  public  enemies.  In  the  war  of 
1812,  between  the  United  States  and  Great  Britain,  the 
Act  of  July  6,  1812,  and  the  Act  of  February  4,  1815, 
indicated  the  character  and  extent  of  legislation  neces- 
sary to  record  the  decision  of  the  Legislative  Department, 
that  Great  Britain  was  at  that  time  a  public  enemy. 

But  since  the  present  rebellion  commenced,  Congress 
has  enacted  laws  far  more  stringent  and  comprehensive 
than  either  of  those  above  cited,  against  the  inhabitants 
of  the  rebellious  States.     The  four  chief  acts  which  re- 

*  Sue  War  Powers,  8th  cd.  p.  215. 
f  The  effect  of  the  President's  Message  and    Proclamation  of  Amne  !.  of 
Dee.  8,  18G3,  upon  the  persons,  property,  and  political  rights  of  the  inhabi- 
tants of  rebellious  states,  far  transcends  in  importance  that  of  either  of  liis 
previous  executive  acts. 


MIUTVKY    00VKRN 


cord  the  decision  of  Congress  on  (In*  question  whether 
rebels  are  public  <>r  private  enemies,  are, — 

1.  The  Art  of  Julj  1.:.  1861,  ch.  ■'!. 

•J.     Mi\  20,  I862,ch.  81. 

July  ir.  L862,  ch.  L95. 

S.     March  12,  1863,  ch.  L20. 

In  the  extraordinary  but  brief  session  of  the  37th 
Congress,  which  assembled  on  the  4th  of  .Inly.  L861,  and 
lasted  l>ut  thirty-three  days,  statutes  of  the  highesl  im- 
portance were  passed,  and  among  them  none  will  here- 
after attract  more  attention  than  the  Act  of  July  13, 
1  86  1 .  ch.  3.  Means  were  thereby  provided  for  collecting 
the  revenue  in  rebellious  districts  by  the  use  of  military 
and  naval  forces,  the  President  was  authorized  to  close 
ports  of  entry,  and  it  was  enacted,  in  the  fifth  section, — 

"  That  whenever  the  President,  in  pursuance  of  the  provisions  of  the  second 
section  of  the  act  entitled  •  An  act  to  provide  for  the  calling  forth  the  militia 
^ecute  the  laws  of  the  Union,  suppress  insurrections,  and  repel  invasions, 
and  to  repeal   the  act  now  in  force  for  that  purpose,'  approved   February  28, 
1795,  shall  have  called  forth  the  militia  to  suppress  combinations  against  the 
laws  of  the  United  States,  and  to  cause  the  laws  to  be  duly  executed,  and  the 
insurgents  shall  have  failed  to  disperse  by  the  time  directed  by  the  President, 
and  when  said   insurgents  claim  to  act   under  the  authority  of  any  State  or 
d  such  claim  is  not  disclaimed  or  repudiated  by  the  persons  exer- 
cising the  functions  of  government  in  such  State  or  States,  or  in  the  part  or 
parts  thereof  in   which   said  combination  exists,  nor  such  insurrection  sup- 
•  d  by  said  State  or  States,  then   in   such  case  it  may  and  shall   be  lawful 
tor  the  President,  by  proclamation,  to  declare  that  the  inhabitants  of  such  State, 
or  a>  r  part  thereof  where  such  insurrection  exists,  are  in  a  state  of 

insurrection  against  the  United  States;  and  thereupon  all  commercial  inler- 
course  by  and  between  the  same  and  the  citizens  thereof,  and  the  citizens  of 
the  real  of  the  United  States,  shall  cease  and  be  unlawful  so  long  as  such 
condition  of  hostility  shall  continue;  and  all  goods  and  chattels,  wares  and 
merchandise  coming  from  said  State  or  section  into  the  other  parts  of  the 
Unit       -  and  all  proceeding  to  such  State  or  section,  by  land  or  water, 

shall,  together  with  the  vessel  or  vehicle  conveying  the  same,  or  conveying 
persons  to  or  from  such  State  or  section,  be  forfeited  to  the  United  States." 

Also,  in  the  sixth  section,  it  was  enacted, — 

"  That  from  and  after  fifteen  days  after  the  issuing  of  the  said  proclamation, 
ovided  iu  the  last  foregoing  section  of  this  act,  any  ship  or  vessel  belong- 


MILITARY  GOVERNMENT.  301 

ing  in  whole  or  in  part  to  any  citizen  or  inhabitant  of  said  State  or  part  of  a 
State  whose  inhabitants  are  so  declared  in  a  state  of  insurrection,  found  at 
sea,  or  in  any  port  of  the  rest  of  the  United  States,  shall  be  forfeited  to  the 
United  States." 

By  the  Act  of  May  20,  1862,  ch.  81,  further  pro- 
visions were  made  interdicting  commerce  between  lo}ral 
and  disloyal  States,  and  new  forfeitures  and  penalties 
were  prescribed. 

By  the  Act  of  July  17,  1862,  ch.  195,  a  new  punish- 
ment for  the  crime  of  treason  was  declared,  penalties 
were  prescribed  against  all  persons  who  should  engage 
in,  or  give  aid  or  comfort  to  the  rebellion  or  insurrec- 
tion, and  they  were  declared  to  be  disqualified  from 
holding  office  under  the  United  States.  By  Section  fifth 
it  was  enacted,  — 

"  That,  to  insure  the  speedy  termination  of  the  present  rebellion,  it  shall  be 
the  duty  of  the  President  of  the  United  States  to  cause  the  seizure  of  all  the 
estates  and  property,  money,  stocks,  credits,  and  effects  of  the  persons  herein- 
after named  in  this  section,  and  to  apply  and  use  the  same  and  the  proceeds 
thereof  for  the  support  of  the  army  of  the  United  States ;  that  is  to  say,  — 

"  First.  Of  any  person  hereafter  acting  as  an  officer  of  the  army  or  navy 
of  the  rebels  in  arms  against  the  government  of  the  United  Status. 

"  Secondly.  Of  any  person  hereafter  acting  as  president,  vice-president, 
member  of  Congress,  judge  of  any  court,  cabinet  officer,  foreign  minister, 
commissioner,  or  consul  of  the  so-called  confederate  states  of  America. 

"  Thirdly.  Of  any  person  acting  as  governor  of  a  Slate,  member  of  a  con- 
vention or  legislature,  or  judge  of  any  court  of  the  so-called  confederate  states 
of  America. 

"  Fourthly.  Of  any  person  who,  having  held  an  office  of  honor,  trust,  or 
profit  in  the  United  States,  shall  hereafter  hold  an  office  in  the  so-called  con- 
federate states  of  America. 

"  Fifthly.  Of  any  person  hereafter  holding  any  office  or  agency  under  the 
government  of  the  so-called  confederate  states  of  America,  or  under  any  of 
the  several  states  of  the  said  confederacy,  or  the  laws  thereof,  whether  such 
office  or  agency  be  national,  state,  or  municipal  in  its  name  or  character. 
Provided,  That  the  persons,  thirdly,  fourthly,  and  fifthly  above  described, 
shall  have  accepted  their  appointment  or  election  since  the  date  of  the  pre- 
tended ordinance  of  secession  of  the  State,  or  shall  haive  taken  an  oath  6f 
allegiance  to,  or  to  support  the  constitution  of  the  so-called  confederate 
states. 


302  MILITARl    G01  ERNM1  NT. 

Sixthly       i)  pei      |  who,  owning  propert)  in  anj  loyal  State  or  Ter- 

.  of  the  United  States,  or  in  the  Districl  of  Columbia,  shell  1  hereafter 

!     mforl  i"  Buch  rebellion;  and  all  Bales,  transfers,  or 

-.  inces  of  any'sucb  property  shall  be  null  and  void;  and  it  Bhall  be  a 

ienl  bar  to  any  suit  broughl  by  such  perso    for  the  i ession  or  the  use 

.  Ii  property,  or  any  of  it,  to  allege  and  prove  that  he  is  one  of  the  per- 

lescribed  in  this  section." 

•ion  sixth  provided  thai  if  any  persons  other  than 
those  above  named,  had  engaged  in.  or  aided  the  armed 
rebellion,  and  should  not  within  a  limited  time  return  to 
their  allegiance,  their  property  should  be  liable  to  seizure 
and  condemnation. 

Section  seventh  provided  proceedings  for  confiscation 
of  such  property,  real  and  personal, — 

•■  And  it'  said  property,  whether  real  or  personal,  Bhall  be  found  to  have 
belontT'-l  to  a  person  engaged  in  rebellion,  or  who  has  given  aid  or  comfort 
thereto,  the  same  shall  be  condemned  as  enemiei  •property^  and  become  the 
property  of  the  United  States." 

■•  Slaves  escaping,  and  taking  refuge  within  the  lines  of  the  army,  and  all 
slaves  captured  from,  or  deserted  by,  those  engaged  in  rebellion,  and  coming 
under  control  of  the  government  of  the  United  State-,  and  all  slaves  of  such 
persons  found  or  being  within  any  place  occupied  by  rebel  forces,  and  after- 
wards occupied  by  tones  of  the  United  States,  shall  be  deemed  captives  of 
war,-'  etc. 

The  Act  approved  March  12,  1863,  ch.  120,  §  1,  pro- 
vides that  agents  may  be  appointed  by  the  Secretary  of 
the  Treasury  to  collect  all  abandoned  and  captured 
property  in  any  State  or  Territory  designated  as  in 
insurrection  by  the  proclamation  of  July  1,  1862, — 

"Provided,  that  such  property  shall  not  include  any  kind  or  description 
which  has  been  used,  or  which  was  intended  to  be  used,  for  waging  or  carry- 
ing on  war  against  the  United  States,  such  as  arms,  ordinance,  ships,  steam- 
boat-, or  other  water  craft,  and  the  furniture,  forage,  or  other  military  supplies 
or  munitions  of  war." 

Section  fourth  of  the  same  statute,  provides, — 

••  That  all  property  coming  into  any  of  the  United  States  not  declared  in 
insurrection  as  aforesaid,  from  within   any  of  the  states  declared  in  insurrec- 


MILITARY   GOVERNMENT.  303 

lion,  through  or  by  any  other  person  than  any  agent,  duly  appointed  under 
the  provisions  of  this  act,  or  under  a  lawful  clearance  by  the  proper  officer  ■ 
of  the  Treasury  Department,  shall  be  confiscated  to  the  use  of  the  govern- 
ment of  the  United  States.  And  the  proceedings  for  the  condemnation 
and  sale 'of  any  such  property  shall  be  instituted  and  conducted  under  the 
direction  of  the  Secretary  of  the  Treasury,  in  the  mode  prescribed  by  the 
eighty -ninth  and  ninetieth  sections  of  the  act  of  March  2,  1799,  entitled, 
'  An  act  to  regulate  the  collection  of  duties  on  imports  and  tonnage.'  And 
any  agent  or  agents,  person  or  persons,  by  or  through  whom  such  property 
shall  come  within  the  lines  of  the  United  States  unlawfully,  as  aforesaid,  shall 
be  judged  guilty  of  a  misdemeanor,  and  on  conviction  thereof  shall  be  fined 
in  any  sum  not  exceeding  one  thousand  dollars,  or  imprisoned  tor  any  time 
not  exceeding  one  year,  or  both,  at  the  discretion  of  the  court.  And  the 
fines,  penalties,  and  forfeitures  accruing  under  this  act,  may  be  mitigated  or 
remitted  in  the  mode  prescribed  by  the  act  of  March  3,  1797,  or  in  such 
manner,  in  special  cases,  as  the  Secretary  of  the  Treasury  may  prescribe." 

From  these  statutes  it  is  seen  that  the  Legislative  De- 
partment  has  recognized  "certain  districts  of  country, 
not  only  as  in  a  state  of  insurrection  and  rebellion,"  but 
as  "  carrying  on  a  ivar  "  against  the  United  States.  Com- 
mercial intercourse  has  been  interdicted  between  the 
insurrectionary  and  the  loyal  States,  and  property  found 
in  transitu  is  made  liable  to  seizure  and  confiscation,  for 
the  use  of  the  United  States,  and  property  of  persons 
engaged  in  the  rebellion  is  to  be  seized  and  confiscated 
as  enemies'  property.  The  inhabitants  (that  is  to  say  all 
the  inhabitants)  of  the  insurrectionary  States,  or  parts  of  States, 
are  declared  to  be  in  a  state  of  insurrection  against  the  V nil  at 
States,  and  any  ship  or  vessel,  belonging  in  ivhole  or  in  part  to 
any  citizen  or  inhabitant  of  such  Slate,  whose  inhabitants  are  so 
declared  in  insurrection,  found  at  sea,  or  in  any  part  of  the 
rest  of  the  United  States,  shall  be  forfeited  to  the  United  States. 

Thus  belligerent  rights  derived  from  the  acknowledged 
existence  of  civil  territorial  war,  have  been  plainly  as- 
serted and  exercised  by  Congress,  and  the  insurrection- 
ists have  been  treated  as  a  public  enemy  in  every  form  and 
manner  known  to  legislation,  and  in  language  far  more 


MILITARY    GCH  ERNMENT. 


stringent  than  fchal  used  by  Greal  Britain  when,  by  the 
Non-intercourse  A.ct,  our  revolutionary  war  was  changed, 
by  act  of  Parliament,  into  a  public  territorial  war.* 


THE    SUPREME   COURT. 


lias  the  Supreme  Court  thus  far  followed  the  decisions 
of  the  political  departments  of  government  on  the  ques- 
tion as  to  the  stains  of  rebels  as  public  enemies?  —  that 
is  to  say,  enemies  within  the  sense  of  international  law? 

This  question  will  be  answered  by  reference  to  the 
eases  which  have  arisen  since  the  beginning  of  the  war. 

By  far  the  most  important  decisions  on  this  subject 
were  made  in  March,  18G3,  and  are  commonly  known 
as  -The  Prize  Cases."  f 

In  these  opinions  the  judges  recognize  the  insurrec- 
tionists as  public  enemies,  following,  as  was  their  duty, 
the  decision  of  the  Political  Department  of  the  govern- 
ment. 

How  could  judgment,  condemning  these  vessels  as 
lawful  prize,  be  sustained  if  the  belligerents  were  not 
admitted  to  be  public  enemies  ?  Though  a  vessel,  captured 
while  trading  with  an  enemy,  may  be  lawful  prize, 
irrespective  of  the  character  of  the  trader,  whether 
friendly,  neutral,  or  hostile,  to  whom  it  belongs,  yet 
it  is  because  his  vessel  may  aid  a  public  enemy,  that  it 
becomes  liable  to  capture.  No  property  of  a  friendly 
or  neutral  power  can  be  lawfully  captured  because  it 
might  aid  a  criminal,  a  robber,  or  a  pirate,  or  an  insur- 
gent,  while    acting   merely   as   a  private    or    personal 

*See  Act  16  Geo.  3,  1776. 
See  dissenting  opinion  in  The  Prize  cases.     War  Powers,  153. 

f  The  opinion  of  the  Court,  together  with  that  of  the  dissenting  Judges, 
may  be  found  by  reference  to  the  2d  Vol.  Black's  S.  C.  Reports,  or  to  the  8th 
el.  of  the  War  Powers,  pages  140  to  1.36,  and  an  analysis  of  these  opinions 
may  be  found  in  the  tame  volume,  pages  238  to  243. 


MILITARY    GOVERNMENT.  305 

enemy  of  the  United  States.  The  law  of  prize  has  no 
application  to  the  case  of  personal  or  private  enemies, 
and  cannot  be  invoked  to  justify  a  capture  of  private 
property,  unless  there  exists  a  public  enemy  and  a  state  of 
tvar. 

Blockades,  under  the  law  of  nations,  can  lawfully 
exist  only  when  there  is  a  public  enemy  to  the  country 
which  proclaims  and  enforces  them. 

The  Circuit  Courts  of  the  United  States,  having  ad- 
judged the  inhabitants  of  States  declared  in  rebellion  to 
be  public  enemies,  have  therefore  decided  that  they  are 
not  entitled  to  sue  in  any  of  the  national  courts.* 

Doubtless  the  disability  to  sue  in  courts  of  the  United 
States,  and  all  other  disabilities  resulting  from  the  status 
of  a  public  enemy,  may  be  removed.  But  it  is  for  the 
President  and  Congress  to  determine  what  sound  policy 
and  public  safety  shall  require. 

It  is  a  matter  of  congratulation  that  there  is  no  want 
of  harmony  between  the  different  departments  of  Gov- 
ernment, and  that  the  Supreme  Court  has  not  gone 
beyond  its  legitimate  functions  in  time  of  civil  war ;  but 
has,  by  following  the  decisions  of  the  political  depart- 
ments on  political  questions,  given  the  best  evidence 
that,  even  in  revolution,  it  will  not  be  necessary  for  the 
safety  of  the  country  to  overthrow  its  judiciary. 

Thus  it  has  been  shown  that  the  question  whether 
the  inhabitants  of  the  States  in  insurrection  are  "public 
enemies"  and  entitled  to  the  rights,  or  subject  to  the 
liabilities  of  belligerent  law,  is  to  be  decided,  not  by  the 

*  See  Bouneau  vs.  Dinsmore,  24  Law  Rep.  381. 
S.  C.  19  Leg.  Inst.  108. 

Israel  G.  Nash  (of  North  Carolina)  Complt.  vs.  Lyman  Dayton  et  «l.  (de- 
cided by  Nelson,  Judge  of  the  U.  S.  Circuit  Court   of  Minnesota.) 
See  also  U.  S.  vs.  The  [saac  Eiemmett,  Legal  Jour.  97. 
U.  S.  vs.  The  Allegheny;  ib.  276. 


306  MILITAEl    GOVERNMENT. 

ju  licial,  bu<  by  the  political  departments  of  this  Govern- 
ment 'That  the  Executive  and  Legislative  departments 
have  formally  and  finally  decided  thai  the  rebels  arc  a 
/.  and  are  subject  to  the  laws  of  war.  That 
the  Judicial  Departmenl  has  submitted  to  and  followed 
that  decision;  and  thai  the  question  as  to  the  political 
of  rebellion,  is  now  do  longer  open  for  discussion. 
Thai  whatever  rights,  other  than  the  rights  of  war,  may 
be  conceded  to  the  inhabitants  of  rebellious  territory, 
will  be  bestowed  on  them  from  considerations  of  policy 
and  humanity,  and  not  from  admission  of  their  claims  to 
risrhts  under  our  Constitution* 


Mi  ssrs.   Fishback   and   Baxter  claimed   recognition  as   United  States 

in  the  State  of  Arkansas,  a  State  declared  by  proclamation  of  the 

nt  to  be  in  rebellion.      Since  the  publication  of  the  first  edition  the 

.  mi  the  29th  of  June,  1864,  resolved  that  they  were  not  entitled  to 

therein,  —  yeas,  8;  nays,  25. 


CHAPTER  V. 

DELEGATION  OF  AUTHORITY. 

Judicial  authority  cannot  be  delegated,  and  as  the 
commander  of  a  department,  or  other  officer  who  pre- 
sides over  a  military  tribunal  while  determining  a  case 
of  civil  jurisdiction,  acts  in  a  quasi  judicial  capacity,  a 
question  has  been  made  whether  the  right  to  hold  such 
courts  can  be  delegated  by  the  President  to  his  officers. 
Although  such  proceedings  of  the  war  courts  as  com- 
plaints of  parties,  pleadings,  examination  of  witnesses, 
deliberations  and  decisions  of  judges,  in  many  respects 
resemble  those  of  judicial  courts,  yet,  as  they  are  not 
deemed  judicial  within  the  true  meaning  of  the  Consti- 
tution, no  valid  objection  arises  from  that  source,  to  the 
delegation  of  the  power  to  hold  military  courts,  to  such 
officers  as  may  be  appointed  by  the  President. 

This,  and  nearly  all  the  war  powers,  must  be  exercised 
through  officers  acting  under  the  Commander-in-Chief; 
for  his  authority  must  be  exerted  at  the  same  time  in 
different  and  distant  places ;  and  as  he  cannot  be  omni- 
present, that  authority  which  could  not  be  delegated 
would  become  comparatively  useless.  The  practice  of 
the  Government  has,  from  the  beginning,  been  in 
accordance  with  this  view  of  constitutional  law. 

The  power  of  the  President  is  in  part  delegated  to  his 
Secretary  of  War,  whose  acts  are  deemed  in  law  to  be 
the  acts  of  the  President.*     The  commanders  of  milita iy 

*  Wilcox  vs.  Jackson,  L3  Pet.  K.  198. 
Opinion  of  Win.  Wirt,  Att'y  Gen.  (July  6,  1820). 
U.  S.  vs.  Eliason,  16  Pet.  S.  C.  R.  291 

807 


308  MILITARY    GOVERNMENT. 

departments  are  clothed  with  authority  transferred  to 
them  by   the   Commander-in-Chief.     Therefore,  if  that 

authority  is  not  Limited  so  as  to  prevent  it.  they  have 
the  right,  while  in  the  enemy's  country  in  time  of  war, 
to  organize  military  courts  martial  and  commissions,  and 
to  administer  all  other  belligerent  laws.  Tribunals  so 
organized  may  exercise  all  functions  properly  conferred 
upon  them,  and  their  decisions  are  not  only  valid,  but 
are  not  subject  to  reversal  by  any  judicial  court;  but 
only  by  the  final  action  of  the  President. 

So  also,  if  a  military  governor  is  placed  over  such 
hostile  district,  clothed  with  the  powers  of  the  Com- 
mander-in-Chief, he  may  himself  administer  the  laws  of 
war  over  those  subjected  thereto  within  his  precinct,  and 
may  establish  courts  military  and  civil,  with  jurisdiction 
over  all  persons  and  things  therein.     And  whether  he 

3  on  his  own  discretion  in  so  doing,  under  general 
orders,  or  under  special  orders  in  each  case,  he  is,  ac- 
cording to  military  law,  responsible  only  to  his  superior 
officer. 

Although  no  civilian,  or  civil  or  merely  executive  officer, 
has  a  right  to  institute  a  military  court,  unless  deriving 
special  authority  to  do  so  from  some  law  of  Congress  or 
from  military  orders,  there  seems  to  be  no  reason  why 
any  of  the  war  powers,  in  time  of  actual  service,  may 
not  be  delegated  to  military  men  by  the  President,  or 
by  any  other  military  officer  who  possesses  them ;  and 
no  reason  for  making  any  distinction  between  the  dif- 
ferent classes  of  powers  which  may  be  so  delegated. 


CHAPTER    VI. 

HOW  MILITARY  OR   PROVISIONAL    GOVERNMENTS    MAY  BE    CREATED 
AND    REGULATED    BY    CONGRESS. 

The  right  and  duty  of  administering  purely  military 
government  belongs  to  the  war-making  power,  which  is 
usually  subject  only  to  the  rules  of  the  belligerent  law. 
When  that  power  is  regulated  by  any  treaties,  constitu- 
tion, or  statutes  of  the  invading  country,  then  military 
governments  established  under  it  must  be  conducted  in 
accordance  with  the  laws  of  war,  as  modified  by  such 
legislative,  constitutional,  or  treaty  restrictions.  Thus, 
wherever  in  the  United  States  such  a  government  shall 
be  instituted  by  the  Commander-in-Chief,  his  administra- 
tion of  it  may,  to  a  certain  extent,  and  with  certain  lim- 
itations, be  regulated  by  acts  of  Congress. 

The  right  of  the  United  States  to  acquire  territory 
by  purchase,  treaty,  or  annexation,  necessarily  implies 
the  existence  in  Congress  of  the  power  to  establish 
some  form  of  government  over  regions  thus  added  to  the 
country.  Conquest  itself  confers  on  the  conqueror  au- 
thority to  make  laws  for  the  conduct  of  people  .sub- 
jected to  his  power.  The  right  of  the  government 
when  conqueror  in  civil  territorial  war  to  make  rules 
and  regulations  relating  to  conquest  and  captures  may, 
by  the  Constitution  of  the  United  States,  be  exercised 
by  the  Legislative  Department. 

A  provisional  government,  partaking  in  a  high  de- 
gree of  a  martial  character,  may  be  ordained  and  estab- 
lished over  subjugated  districts  in  time  of  civii  war,  by  laws 

309 


310  Mll.lTAKV    GOVERNMENT. 

o\'  < longress,  and  may  be  administered  by  civilians  <>r  by 
military  persons,  appointed  by  the  President,  according 
tn  the  requirements  of  the  statutes. 

It  is  also  the  duty  of  Congress  to  pass  all  laws  which 
are  proper  and  lit  to  aid  the  President  in  carrying  Into 
effect  his  obligation  to  suppress  rebellion  and  enforce 
the  laws,  to  secure  domestic  tranquillity,  and  to  guaranty 
to  each  State  a  republican  form  of  government.*  And 
as  the  creation  and  administration  of  military  or  provis- 
ional governments  is  an  essential  means  of  accomplish- 
ing these  objects,  it  would  seem  for  this  reason  also  to 
be  the  duty  of  Congress,  in  aid  of  the  Commander-in- 
Chief)  and  without  interfering  with  his  military  opera- 
tions to  erect  governments  over  the  subjugated  districts, 
clothed  with  powers  adequate  to  administer  the  laws  of 
war,  subject  to  the  Constitution  and  the  statutes  of  the 
United  States,  and  to  such  orders  as  the  President  may 
from  time  to  time  issue,  not  inconsistent  therewith. 
Governments  thus  established  rest  not  alone  upon  the 
military  power  of  the  President  as  Commander-in-Chief 
of  the  army  and  nav}r,  but  upon  the  war  powers  of  Con- 
gress, and  should  be  so  organized  as  to  endure  until  the 
people  of  these  districts  shall  be  again  permitted  to 
resume  self-government,  and  be  again  clothed  with  their 
former  political  rights.-j- 

Therefore,  although  the  President  may,  while  en- 
gaged in  hostilities,  and  in  the  absence  of  laws  restrict- 
ing his  authority,  enforce  belligerent  rights  against  a 
public  enemy,  Congress  also  may  establish  rules  and 
regulations  which,  without  interfering  with  his  powers 

*  Constitution,  Art.  1,  Sect.  8,  Cb.  18.     See  ante,  p.  269. 
■f-  The  model  of  our  territorial  governments,  in  time  of  peace,  is  the   Ordi- 
nance of  13th  July.  ]  7*7. 

See  3  Story,  Com.  on  Const.  1312. 
"Webster's  Speeches,  Jan.  1830,  pp.  3G0-364. 


MILITARY    GOVERNMENT.  311 

as  commander  of  the  army,  it  will  be  his  duty  to  admin, 
ister. 

In  a  province  to  be  subdued  by  soldiers,  the  only 
means  by  which  the  will  of  Congress,  or  the  will  of  the 
head  of  the  army  can  usually  be  carried  into  execu- 
tion, is  by  force  of  arms.  In  one  sense,  all  government, 
wThether  provisional  or  quasi  civil,  established  under 
such  circumstances,  must  assume  a  military  character. 
In  that  view  it  can  be  controlled  by  Congress  only 
through  use  of  the  military  power  of  the  army.  Yet  the 
President  is  bound  to  execute  all  laws  which  Congress 
has  a  right  to  make ;  and  so  far  as  the  Legislature  has 
the  authority  to  interfere  with  or  control  the  President 
by  laws  or  by  regulations,  or  by  imposing  upon  him  the 
machinery  of  provisional  governments,  so  far  he  is 
bound  to  administer  them  according  to  statute. 

LIMITS    OF    POWER.        CONFLICT     BETWEEN     THE   WAR     POWERS    OF     TIIE 
PRESIDENT   AND    THE   LEGISLATIVE   POWERS    OF    CONGRESS. 

Though  the  Executive,  Legislative,  and  Judicial  de- 
partments of  our  government  are  to  a  certain  extent 
independent  of  each  other,  yet  no  one  of  these  depart- 
ments is  without  some  control  over  the  others.  The 
legislature  can  make  no  law  without  the  concurrence  of 
the  President,  unless  passed  by  two-thirds  of  the  voters 
in  both  houses ;  and  laws,  when  made,  are  void  if  pro- 
nounced unconstitutional  by  the  Supreme  Judicial  Court. 
The  judiciary,  in  deciding  purely  political  questions,  are 
bound  to  follow  the  decisions  of  the  Legislative  or  Execu- 
tive departments,  and  are  in  other  respects  controlled  by 
the  action  of  the  coordinate  branches  of  the  govern 
ment.  The  Executive  can  make  treaties  only  by  con- 
currence of  the  Senate;  and  most  of  the  appointments 
to  high   oflices  must,  to   be   valid,  be  made  with    its 


812  KILITABY    GOVERNMENT. 

advice   and   consent      The    President    cannol    declare 

war:  hut  Congress  can.  Congress  cannot  cany  on 
war:  but  the  President  can.  Congress  may  make  rules 
and  regulations  concerning  captures,  and  for  the  gov- 
ernment and  regulation  of  the  land  and  naval  forces, 
when  in  service,  binding  upon  the  President,  whose 
duty  it  is  to  see  all  constitutional  laws  faithfully  exe- 
c n ted.  while  lie  is  made  the  supreme  commander  of  the 
army  and  navy. 

Questions  may  therefore  arise  as  to  the  limitation  of 
the  respective  powers  of  the  Commander-in-Chief  in 
conducting  hostilities,  and  the  powers  of  Congress  in 
controlling  him,  by  virtue  of  this  legislative  right  to 
make  rules  and  regulations  for  the  government  of  mili- 
tary forces,  and  respecting  captures  on  land  and  sea. 

To  determine  how  far  Congress  may  interfere  with 
and  govern  the  military  operations  of  the  Executive, 
when  the  war  power  is  employed  in  enforcing  local  gov- 
emment  by  martial  law,  without  derogating  from  his 
power  as  Commander-in-Chief  of  the  army,  will  require 
careful  consideration,  inasmuch  as  such  government  can 
be  in  fact  maintained  and  enforced  only  by  military, 
and  not  by  legislative  authority. 

HOW   THESE    GOVERNMENTS    MAY   BE    TERMINATED. 

Military  governments  maybe  terminated  by  the  com- 
manding general  at  his  will,  by  withdrawal  of  the  officers 
who  administer  it. 

As  it  is  in  the  power  of  the  Legislative  Department  to 
declare  war.  and  to  provide  or  withhold  the  means  of 
carrying  it  on,  Congress  also  may,  after  hostilities  shall 
have  ceased,  declare  or  recognize  peace,  terminate  mili- 
tary or  provisional  governments,  or  may  regulate  them 


MILITARY    GOVERNMENT.  313 

and  cause  them  to  be  modified  or  wholly  withdrawn, 
whether  originally  erected  by  its  own  authority  or  by 
the  war  power  of  the  President,  and  may  institute  civil 
territorial  governments  in  their  place. 

Or  the  people  of  the  district,  having  formed  a  new 
government  for  themselves,  by  permission  of  the  United 
States,  may  be  admitted  into  the  Union  as  a  State,  and 
thus  the  military  government  will  be  displaced. 

But  military  governments  are  not  of  necessity  termi- 
nated by  a  declaration  of  peace  between  belligerents, 
or  a  cession  of  territory  in  dispute,  but  may  be  contin- 
ued long  after  war  ceases,  by  presumed  assent  of  the 
President  and  of  Congress. 

"The  right  inference,"  says  Mr.  Justice  Wayne,  in 
delivering  the  unanimous  opinion  of  the  Supreme  Court,* 
"  from  the  inaction  of  both  the  President  and  of  Congress, 
is,  that  it  (the  military  government)  was  meant  to  be  con- 
tinued until  it  had  been  legislatively  changed.  No  pre- 
sumption of  a  contrary  intention  can  be  made.  Whatever 
may  have  been  the  cause  of  delay,  it  must  be  presumed 
that  the  delay  was  consistent  with  the  true  policy  of 
the  Government."  "  California  and  New  Mexico  were 
acquired  by  conquest  confirmed  by  cession.  During  the 
war  they  were  governed  as  conquered  territory,  under 
the  law  of  nations,  and  in  virtue  of  the  belligerent  rights 
of  the  United  States  as  the  conqueror,  by  the  direction 
and  authority  of  the  President  as  Commander-in-Chief. 
By  the  ratification  of  the  treaty  of  Guadalupe-Hidalgo, 
on  the  20th  of  May,  1848.  they  became  a  part  of  the 
United  States,  as  ceded  conquered  territory.  The  civil 
governments  established  in  each  during  the  war,  and 
existing  at  the  date  of  the  treaty  of  peace,  continued  in 

*  Cross  vs.  Harrison,  L6  How.  L93. 


3  11  Mil  1 1  \i;v    00VBRNM1  N  r. 

operation  after  thai  treaty  had  been  ratified.  Califor- 
nia, with  the  assent  and  cooperation  of  the  existing  gov- 
ernment, formed  a  constitution  which  was  ratified  by  its 
inhabitants,  and  a  State  government  was  put  in  full  op- 
eration in  December,  L849,  with  the  implied  assent  of 
the  President,  the  officers  of  the  existing  government 
of  California  publicly  and  formally  surrendering  all 
their  powers  into  the  hands  of  the  newly-constituted 
authorities.  The  constitution  so  formed  and  ratified 
was  approved  by  Congress,  and  California  was,  on  the 
9th  of  September,  L 8 50,  admitted  into  the  Union  as  a 
State.  New  Mexico  also  formed  a  constitution,  and  ap- 
plied to  Congress  for  admission;  the  application  was 
not  granted,  but  on  the  9th  of  September,  1850,  New 
Mexico,  and  that  part  of  California  not  included  within 
the  limits  of  the  new  State,  were  organized  into  terri- 
tories, with  new  territorial  governments,  which  took  the 
place  of  those  organized  dining  the  war,  and  existing 
on  the  restoration  of  peace."  * 

Such  governments,  founded  only  in  and  sustained  by 
war  power,  are,  when  peace  is  officially  recognized,  en- 
tirely within  the  control  of  Congress. 

When  the  enemy  have  laid  down  their  arms,  and 
make  no  further  opposition  to  the  execution  of  our  laws, 
there  can  exist  no  reason  why  the  President  should  not 
obey  and  enforce  the  rules  and  statutes  of  Congress, 
regulating  his  own  conduct  and  the  military  governments 
and  military  tribunals  established  by  him.  No  reason 
could  be  offered  to  explain  why  he  should  not  make 
complete  and  unquestioning  submission  to  the  will  of 
the  people.  His  refusal  to  do  so  would  subject  him  to 
impeachment, 

*  Halleck,  Int.  Law,  828,  820. 


MILITARY    GOVERNMENT. 


There  seems  to  be  less  danger  to  civil  liberty  from 
the  use  of  military  governments  and  tribunals  as  tem- 
porary instruments  for  carrying  on  war  and  of  securing 
conquest,  than  from  any  other  use  of  military  forces. 


CHAPTER    VII. 

It  has  been  shown  in  the  foregoing  chapters,  thai  the 
President  has  authority  to  establish  military  govern- 
ments over  enemy  territory  in  time  of  war, — 

1st  Because  such  governments  are  necessary  to  the 
successful  prosecution  of  hostilities,  and  to  secure  the 
objects  for  which  war  has  been  waged. 

2d.  Because  the  Constitution,  by  making  him  Com- 
mander-in-Chief of  the  army,  confers  on  him  the  right  to 
use  all  proper  means  of  warfare,  including  war-govern- 
ments and  war-courts ;  and 

3d.  Because  the  Supreme  Court  have  recognized 
this  authority,  and  have  given  to  it  the  sanction  of  law 
by  their  decisions. 

The  next  question  will  relate  to  the  character  and 
extent  of  the  powers  to  be  exercised  by  military  govern- 
ments. 

JURISDICTION   OF   MILITARY   GOVERNMENTS. 

To  such  military  governments  as  are  established  by 
the  Commander-in-Chief,  in  time  of  war,  he  may  delegate 
more  or  less  power,  according  to  the  object  for  which  he 
ha<  in-tituted  them. 

In  the  District  of  Columbia,  a  military  governor  has 
been  appointed  for  the  performance  of  certain  limited 
duties  essential  to  the  regulation  of  the  police  of  the 
forces  stationed  within  the  defences  of  Washington,  the 
treatment  of  persons  under  arrest  and  in  prison,  and 
other  important  specific  duties.     In  the  mean  time,  the 

316 


MILITARY    GOVERNMENT.  317 

sessions  of  the  Supreme  Court  of  the  United  States,  and 
of  the  local  courts,  and  of  Congress,  and  the  business  of 
all  the  departments  of  the  Government,  are  undisturbed. 

In  districts* of  country  declared  to  be  in  rebellion, 
whose  inhabitants  are  "public  enemies,"  such  govern- 
ments have  been  commissioned  with  powers  to  adminis- 
ter local,  municipal,  civil,  and  criminal  law,  and  with 
jurisdiction  embracing  all  persons  and  all  questions 
which  may  arise    therein. 

There  is  no  other  necessary  limit  to  the  jurisdiction 
of  a  military  governor,  than  there  is  to  that  authority 
under  which  he  received  his  appointment.  The  exist- 
ence of  state  or  municipal  governments,  or  of  militant 
civil,  or  ecclesiastical  tribunals,  established  before  the 
war  began,  in  the  rebellious  districts,  does  not  affect  tlie 
jurisdiction  of  such  governments  or  courts  as  may  be 
erected  therein  by  the  war  power  of  the  United  States. 
Since  these  sections  of  country  have  become  hostile  — 
the  inhabitants  thereof  being  now  public  enemies  —  no 
authority  of  such  enemies,  executive,  judicial,  or  military, 
can  be  recognized  by  the  conqueror  as  rightful  or  legit- 
imate. No  legislature,  no  judiciary  of  a  public  enemy, 
can  be  permitted  to  retain  or  exercise  any  jurisdiction 
or  control  over  persons  or  property  found  in  that  region 
which  is  within  the  military  occupation  of  our  army. 

The  enemy's  courts  and  legislatures  derive  their  right 
to  ordain  and  enforce  laws  from  a  government  at  open 
war  with  our  own, —  one  which  we  refuse  to  recognize, 
,.nd  we  might  as  well  acknowledge  the  independence  of 
the  seceding  States,  and  surrender  to  their  army,  as  to 
subject  ourselves,  or  to  allow  others,  to  pay  obedience  to 
their  laws,  their  courts,  or  their  jurisdiction. 

A  public  enemy  has  no  jurisdiction,  either  by  courts 
instituted  by  him,  or  by  any  civil,  military,  or  judicial 


318 


Mil  [T  \i:v    G0VERNM1  NT. 


officers  appointed  by  him.  to  exercise  authority  in  any 
locality  which  is  held  by  our  military  power.  Bui  all 
persons  and  all  subjects  who  arc  round  there,  are  under 

our  military  control,  whether  that  control  he  exercised 
by  soldiers  in  the  field,  or  by  military  governors,  who 
may  call  to  their  aid  military  tribunals,  or  may  even 
allow  civil  tribunals  to  proceed  under  military  authority. 

The  only  limitations  to  t  he  jurisdiction  of  such  military 
power  over  persons  and  property,  are  such  as  are  de- 
rived from  the  laws  of  war;  though  in  the  United 
States  further  limitations  may  be  prescribed  by  laws  of 
Congress. 

Hence,  aliens  residing  in  belligerent  districts,  non- 
combatants,  whether  neutral,  friendly  or  hostile,  persons 
engaged  in  hostility,  persons  belonging  to  the  invading 
country,  and  accompanying  the  army,  are  alike  within 
the  jurisdiction  of  a  military  government,  and  of  mil- 
itary courts  duly  established  therein. 


CHAPTER    VIII. 

THE    LAW    ADMINISTERED    BY   MILITARY    GOVERNMENTS. 

As  the  powers  of  a  dc  facto  government  belong  to  the 
conqueror  by  the  laws  of  war,  he  may  suspend,  modify, 
or  abrogate  all  municipal  laws  of  those  whom  he  has 
conquered  ;  he  may  disregard  their  former  civil  rights 
and  remedies;  he  may  introduce  and  enforce  a  new 
code  of  laws,  military  and  municipal,  and  ma}7  carry 
them  into  effect  by  new  military  tribunals,  having  abol- 
ished all  courts  and  offices  held  under  the  authority  of 
his  enemy.  * 

It  has  been  held  by  the  Supreme  Court  that  "  the 
laws,  whether  in  writing  or  evidenced  by  the  usage  and 
customs  of  the  conquered  or  ceded  country,  continue  in 
force  till  altered  by  the  new  sovereign."  j- 

While  they  continue  in  force,  it  is  by  the  express  or  im- 
plied permission  of  the  new  sovereign,  and  until  altered 
by  him.  They  are  recognized  only  as  an  expression  of 
the  will  of  the  conqueror. J  If  the  law  should  conflict 
with  the   will  of  the  conqueror,  the   law  must  yield  ; 

*  Halleck,  Int.  Law,  pp.  830-831,  and  cases  there  cited. 

Bowyer,  Universal  Public  Law,  ch.  1G,  158. 

Fabrigas  vs.  Mostyn,  1  Cowper,  165. 

Gardner  vs.  Fell,  1  Jacob  &  Walker,  27. 

Flemming  et  al.  vs.  Page,  9  How.  603. 

Am.  Ins.  Co.  vs.  Canter,  1  Peters,  542. 

Cross  et  al.  vs.  Harrison,  1G  IIovv.  1G4. 

HefFter,  Droit  Int'l,  sect.  185. 
f  Strother  vs.  Lucas,  12  Peters,  436,  and  authorities  there  cited. 
X  For  the  operation  of  transfers  of  territory  upon  the  laws  and  rights  of 

319 


MINT  \i:^     <;n\  i  RNMEN  I'. 


otherwise  the  conqueror  would  be  subjected  to  the  rule 
of  those  whom  be  lias  subjugated. 

Bui  the  local  laws  of  a  conquered  country  may  be 
changed  no1  only  by  the  Law-making  power  of  the  con- 
quering country,  bul  by  virtue  of  the  belligerent  rights 
of  the  conqueror.* 

All  these  propositions  follow  from  the  fact  that  the 
power  of  a  public  enemy  to  make  or  administer  law  is 
terminated  by  the  conquest  of  that  territory  by  a  dif- 
ferent law-making  and  law-administering  power,  viz., 
that  of  the  conqueror. 

The  local  laws  of  a  conquered  country  of  which  our 
army  holds  military  occupation,  have  no  force  or  effect 
whatever,  except  by  our  permission.  When  such  local 
laws  agree  with  those  of  the  invading  country,  such 
laws  may  be.  and  usually  are,  adopted  and  sanctioned 
because  they  do  so  agree  therewith.  Thus  rules  gov- 
erning the  rights  of  property,  the  relations  of  persons, 

the  inhabitants  of  the  territory  ceded  or  conquered,  see,  among  other  authori- 
ties the  following,  viz  :  — 

].  B.  B.  ch.  13,  sects.  199,  201. 

4  Com.  Dig.  Ley.  (C) 

Calvin's  Case,  7  Coke,  176. 

Blankard  vs.  Galdy,  2  Salk.  411  ;  S.  C.  2  Mod.  222. 

Mbstyn  vs.  Fabrigas,  Cowp.  165. 

Ball  vs.  Campbell,  Cowp.  204,  209. 

Anon.  2  P.  Williams  76. 

/.    parte  Prosser,  2  Br.  C.  C.  325. 

Elphinstone  vs.  Bedreechund,  Knapps  P.  C  K.  338. 

Ex  parte  Anderson,  5  Ves.  240. 

Evelyn  vs.  Forster,  8  Ves.  96. 

Sheddon  vs.  Goodrich,  8  Ves.  482. 

2  Ves.  Jr.  349. 

Att'y  Gen'l  vs.  Stewart,  2  Meriv.  154. 

Gardiner  vs.  Fell,  1  Jac.  and  W.  77. 

8  Wlieaton,  589  ;  12  Wheaton,  528-535. 

6  Pet.  712;  7  Pet.  86,  87;  8  Pet.  44  !  465. 

9  Pet  133,  734,  749. 

.  Harrison,  1G  How.  199. 


MILITARY    GOVERNMENT.  321 

and  the  laws  of  crimes  in  the  respective  countries  of 
the  belligerents  are  often  so  nearly  alike  that  the 
administration  of  them  is  permitted  to  remain  un- 
changed even  in  war.  But  no  law  or  institution  estab- 
lished by  law  is  permitted  to  survive,  which  is  in  conflict 
with  those  of  the  conqueror. 

In  all  cases,  the  will  of  the  conqueror  governs.  Hence, 
in  a  ceded  or  subjugated  territory,  all  laws  violating 
treaty  stipulations  with  foreign  nations,  or  granting 
rank  and  titles  or  commercial  privileges  in  conflict  with 
the  institutions  of  the  conqueror,  are  abrogated.* 

It  has  been  asserted  that  the  municipal  laws  of  a 
belligerent  territory  remain  in  force,  "proprio  vigor  e^ 
until  altered  by  military  orders ;  but,  although  such 
laws  may  have  been  tacitly  adopted,  or  the  enforcement 
thereof  may  have  been  permitted,  it  is  not  because 
these  laws  retained  any  validity  "proprio  vigore."  Their 
only  validity  was  derived  from  the  tacit  or  express  sanc- 
tion and  adoption  thereof  by  the  will  of  the  commander- 
in-chief  of  the  invading  army. 

In  case  of  conquest  of  a  foreign  country,  the  ques- 
tion has  been  asked,  what  laws,  if  any,  of  the  invading 
country  are  ipsovigore,  and  without  legislation  extended 
over  the  territory  acquired  in  war  ? 

The  suppression  of  the  present  rebellion  is  not  the 
conquest  of  a  foreign  country.  The  citizens  of  the 
United  States  residing  in  the  districts  in  rebellion  are  not 
alien  enemies,  though  they  are  public  enemies  ;  and  it  is 
important,  in  several  points  of  view,  to  observe  the  dis- 

*  Halleck,  Int.  Law,  833,  834,  and  authorities  there  eited  : 
Bowyer,  Univ.  Pub.  Law,  eh.  16. 
Campbell  vs.  Hall,  1  Cowper,  205. 
Fabrigas  vs.  Mostyn,  1  Cowp.  W<r>. 
Gardner  vs.  Fell,  1  Jacob  and  Walk.  27,  SO,  note. 
Att'v  Gen'l  vs.  Stewart,  2  Merivale,  159. 


322  Mll.n\uv    GOVERNMENT. 

tinction  between  enemies  who  are  Bubjecta  of  a  foreign 
government,  and  are  therefore  called  te  alien  enemies  "  and 
those  who  are  denizens  and  subjects  of  the  United  States, 
and  being  engaged  in  civil  war.  arc  called  "public  ene- 
mies." 

An  alien  owes  no  allegiance  or  obedience  to  our 
government,  or  to  our  constitution,  laws,  or  proclama- 
tions. A  citizen  subject  is  bound  to  obey  them  all.  In 
refusing  such  obedience,  he  is  guilty  of  crime  against 
his  country,  and  finds  in  the  law  of  nations  no  justifi- 
cation for  disobedience.  An  alien,  being  under  no 
such  obligation,  is  justified  in  refusing  such  obedience. 
Over  an  alien  enemy,  our  government  can  make  no 
constitution,  law,  or  proclamation  of  obligatory  force, 
because  our  laws  bind  only  our  own  subjects,  and  have 
no  extra-territorial  jurisdiction. 

Over  citizens  who  are  subjects  of  this  government, 
even  if  they  have  so  far  repudiated  their  duties  as  to 
become  enemies,  our  constitution,  statutes,  and  procla- 
tions  are  the  supreme  law  of  the  land.  The  fact  that 
their  enforcement  is  resisted  does  not  make  them  void. 
It  is  not  in  the  power  of  armed  subjects  of  the  Union 
to  repeal  or  legally  nullify  our  constitution,  laws,  or 
other  governmental  acts. 

The  proclamation  of  the  President,  issued  during  the 
present  rebellion,  in  executing  the  powers  conferred  on 
him  by  the  Constitution ;  the  Acts  of  Congress,  in  exe- 
cuting its  powers ;  and  the  decisions  of  the  Supreme 
Court  of  the  United  States,  are  all,  in  one  respect,  "  like 
the  Pope's  bull  against  the  comet ; "  the  proclamation, 
the  laws,  and  the  decisions  are  alike  resisted  and  spurned 
by  our  adversaries;  neither  can  be  enforced  until  the 
enemy  is  overthrown.  But  when  the  soldiers  of  the 
Union   shall  have  routed  and  dispersed  the  last  armed 


MILITARY    GOVERNMENT.  323 

force  of  the  rebellion,  and  when  the  supremacy  of  our 

military  power  is  undisputed,  the  constitution,  the  laws 

of  Congress,  the  proclamation,  and  the  decisions  of  the 

Supreme  Court,  will  at  the  same  time,  pari  passu,  be 

acknowledged   and   enforced.     It   is,  therefore,  idle   to 

speculate  upon  the  legal  validity  and  operation  of  the 

proclamation  liberating  enemies'  slaves,  in  districts  not 

yet  secured   in   our  military  possession.     It  would  be 

equally  useless  to  attempt  to  determine  the  validity  and 

operation  of   our   constitution,  laws,  and    decisions   of 

courts  in  these    rebellious   districts.     Neither  of  them 

will  be  enforced  upon  the  enemy  until  they  have  been 

subjugated.    When  that  event  takes  place,  whether  it  be 

the  result  of  battles  or  of  returning  sanity  of  repentant 

madmen,  the  army  of  the  United  States  will  then  have 

actual  possession  of  every  portion  of  the  United  States, 

and  of  every  slave  who  may  be  found  therein;  and  the 

rio-hts  of  the  slave  to  his  freedom  under  the  constitu- 
te 

tion,  the  statutes  passed,  and  the  proclamations  issued 
by  the  Government  during  the  war,  will  be  secured  to 
him  at  the  same  time  that  other  rights  under  the  same 
Constitution  and  proclamations  will  be  secured  to  the 
other  inhabitants  of  the  country. 

And  there  can  be  no  doubt  that  in  civil  war  the  laws 
of  the  United  States,  rightfully  extending  at  all  times 
over  the  whole  country,  are  to  be  enforced,  so  far  as 
applicable,  in  time  of  war,  over  the  belligerent  territory 
as  fast  as  it  comes  under  our  military  control;  and  that 
in  case  of  complete  conquest,  the  constitution  and  laws 
of  the  Union  will  be  restored  to  full  operation  over  all 
the  inhabitants  thereof.  At  the  same  time,  the  laws 
of  war  will  have  swept  away  all  local  hostile  authori- 
ties, and  all  laws,  rights,  and  institutions  resting  solely 
thereon. 


324  Mll.llAwY    GOVERNMENT. 

The  Commander-in-Chief  has  the  right,  during  war 
to  tivat  their  local  laws  as  inoperative,  or  to  adopl  Bome 
and  rejed  others ;    to  permit  the  holding  of  courts  by 
local  authorities  acting   under  military   power  of  the 
[iieror,  or  to  forbid  them,  and  to  substitute  militarj 
of  his  own.     Having  all  the  rights  of  war  over 
the  subjugated   inhabitants,  he  has  all  the  powers  of  a 
eminent  <A  facto  and  de  jure,  and  can  therefore  im- 
pose upon  them  whatever  laws  or  regulations   may  suit 
his  pleasure,  in  accordance  with  the   laws  of  war.     The 
laws  of  wak  are  the  only  laws  required  by  the  Consti- 
tution to  be   laid   by  military  [tower   upon   public   ene- 
mies  in   time   of   civil    war.     Congress   may  modify  by 
legislation  the  hardship  of  belligerent  rights. 

But  whatever  may  be  done  or  omitted  by  the  Presi- 
it  or  by  Congress,  the  laws  and  municipal  institutions 
of  the  conquered  inhabitants  are  "swept  by  the  board." 
Whatever  law  is  rightfully  administered,  is  law  expressly 
declared  or  tacitly  permitted  by  the  will  of  the  con- 
queror* 

JUDICIAL    COURTS    OF    THE    UNITED    STATES. 

The  courts  judicial,  as  established  by  laws  of  Con- 
gress in  the  seceded  States,  having  been  closed  by  civil 
w;ii'.  may  be  reestablished  whenever  the  districts  over 
which  the}7  have  jurisdiction  shall  be  permanently  re- 
duced under  the  power  of  the  United  States. 

\Yhen  the  officers  of  such  courts,  either  by  engaging 

*  For  authorities  on  this  question,  see 
Ilalleck,  Int.  Law,  832. 
Calvin's  Case.  I     '.    -  Rep.  part  7. 
Gardner  vs.  Fell,  l  Jacob  and  Walker,  22. 
Cross  v  .  Barrison,  l  6  Bow.  105. 
i  pj  Lord  Keith,  2  East.  2G0. 
Blankard  vs.  Guldy,  4  .Mad.  225. 


MILITARY    GOVERNMENT.  325 

in  rebellion  or  otherwise,  have  become  in  law  public 
enemies,  their  right  to  exercise  judicial  or  other  func- 
tions under  authority  of  the  United  States  ceased,  and 
their  offices  were  vacated.  If  new  appointments  were 
to  be  made  now,  it  is  obvious  that  the  authority  of 
courts  would  be  enforced  only  by  military  power ;  their 
jurisdiction  would  be  very  limited;  such  juries  as  they 
could  summon  would  probably  be  hostile  to  the  Union, 
and  the  powers  of  judges,  under  present  laws,  would  be 
be  totally  inadequate  to  meet  the  demands  of  these 
turbulent  times.  Hence  it  would  be  worse  than  useless 
to-,  erect  judicial  courts  before  peace  is  completely  re- 
stored. It  would  tend  to  bring  the  judiciary  into  con- 
tempt. Therefore  it  can  hardly  be  deemed  advisable  to 
interfere  with  the  stern,  effective,  but  necessary  gov- 
ernment of  hostile  people  by  military  power,  until 
Congress  shall  by  legislative  act  recognize  a  state  of 
peace. 


XV  PENDI  X. 


The   most  importanl  cases  decided  by  tin"  Supreme  Courl  of  the  United 
States,  in  relation  to  the  subjects  discussed  in  the  foregoing  pages,  arc:  — 

Fleming  vs.  Page,  9  How.  G14. 
Cross  vs.  Harrison,  16  How.  189. 
Jecker  vs.  Montgomery,  18  How.  112. 
Dynes  vs.  Hoover,  20  How.  79. 
Leitensdorfer  vs.  Webb,  20  How.  177. 
Yallandigham's  case.     Appendix,  88. 

From  these  cases,  for  more  convenient   reference,  the  following  passages 
have  been  extracted. 

Fleming  vs.   Page,  'J  Howard's  S.  C.  Rep.  614. 

Mr.  Chief-Justice  Taney  delivered  the  opinion  of  the  Court: 

The  question  certified  by  the  Circuit  Court  turns  upon  the  con- 
struction of  the  Act  of  Congress  of  July  30, 18-16.  The  duties  lev- 
ied upon  the  cargo  of  the  schooner  Catharine  wen-  tin-  duties  im- 
posed by  this  law  upon  goods  imported  from  a  foreign  country. 
And  if  at  the  time  of  this  shipment  Tampico  was  not  a  foreign 
port,  within  the  meaning  of  the  Act  of  Congress,  then  the  duties 
were  illegally  charged,  and.  having  been  paid  under  protest,  the 
plaintiffs  would  be  entitled  to  recover  in  this  action  the  amount 
exacted  by  the  collector. 
Tampico  The  port  of  Tampico.  at  which  the  goods  were  shipped,  and  the 

was  subject  Mexican  State  of  Tamaulipas,  in  which  it  is  situated,  were   un 
doubtedly,  at  the  time  of  the  shipment,  subject  to  the  sovereignty  and 
and  domin- dominion  of        i    died  States.     The  Mexican  authorities  bad  been 
ton  oi   tin-  driven  out.  or  had  submitted  to  our  army  and  navy,  and  the  coun- 
try was  in  the  exclusive  and  firm  possession  of  (he  United  States, 
and  governed  by  its  military  authorities,  acting  under  the  orders  oj 

w;l~  '/'"'"'"■  the  IJ resident.     But  it  does  not  follow  that  it  was  a  part  of  the 
etl    by    our  TT   •      i  o  i         •  n  •       i 

military  au-  I  nited  .Mates,  or  that  it  ceased  to   be  a  ioreign  country,  in  the 

tiiorities.     sense  in  which  these  words  are  used  in  the  Ads  of  ('(ingress. 

The  country  in  question  had  been  conquered  in  war.     But  the 

genius  and  cb  tracter  of  our  institutions  are  peaceful,  and  the  power 

to  declare  war  was  not  Cjffiferrjid  upon    Congress  for  the  pnrposel 

of  aggression  or  aggrandizement,  but  to  enable  the  general  gov- 

326 


APPENDIX.  327 

ernment  to  vindicate  by  arms,  if  it  should  become  necessary,  its 
own  rights  and  the  rights  of  its  citizens. 

A  war,  therefore,  declared  by  Congress,  can  never  be  presumed 
to  be  waged  for  the  purpose  of  conquest,  or  the  acquisition  of  ter- 
ritory :  nor  does  the  law  declaring  the  war  imply  an  authority  to 
the  President  to  enlarge  the  limits  of  the  United  States  by  sub- 
jugating the  enemy's  country.     The  United  States,  it  is  true,  may 
extend  its  boundaries  by  conquest  or  treaty,  and  may  demand  the 
cession  of  territory  as  the  condition  of  peace,  in  order  to  indem- 
nify its  citizens  for  the  injuries  they  have  suffered,  or  to  reimburse 
the  Government  for  the  expenses  of  the  war.     But  this  can  be 
done  only  by  the  treaty-making  power  or  the  legislative  author- 
ity, and  is  not  a  jiart  of  the  power  conferred  upon  the  President 
by  the  declaration  of  war.     His  duty  and  his  power  are  purely 
military.     As  commander-in-chief,  he  is  authorized  to  direct  the  move-  Powers    of 
merits  of  the  naval  and  military  forces  placed  by  law  at  his  command,  *he.   Pfesi- 
and  to  employ  them  in  the  manner  he  may  deem  most  effectual  to  har-  mander-in- 
ass  and  conquer  and  subdue  the  enemy.     He  may  invade  the  hostile  Chief  to 
country,  and  subject  it  to  the  sovereignty  and  authority  of  the  United  f rmy^rad 
States.     But  his  conquests  do  not  enlarge  the  boundaries  of  this  employ  it, 
Union,  nor  extend  the  operation  of  our  institutions  and  laws  beyond  ^ nvad  l? 
the  limits  before  assigned  to  them  by  the  legislative  power.  subjugate, 

It  is  true  that,  when  Tampico  had  been  captured,  and  the  State  not  t0  ex" 
of  Tamaulipas  subjugated,  other  nations  were  bound  to  regard  the  limits    of 
country,  while  our  possession  continued,  as  the  territory  of  the  Union. 
United  States,  and  to  respect  it  as  such.     For,  by  the  laws  and 
usages  of  nations,  conquest  is  a  valid  title,  while  the  victor  main- Tampico 
tains  the  exclusive  possession  of  the  conquered  country.     The  cit- ourf'  ~f}s 
izens  of  no  other  nation,  therefore,  had  a  right  to  enter  it  without  eign    couu 
the   permission   of  the  American  authorities,  nor  to  hold  inter- tries- 
course  with  its  inhabitants,  nor  to  trade  with  them.     As  regarded 
all  other  nations,  it  was  a  part  of  the  United  States,  and  belonged 
to  them  as  exclusively  as  the  territory  included  in  our  established 
boundaries. 

But  yet  it  was  not  a  part  of  this  Union.  For  every  nation 
which  acquires  territory  by  treaty  or  conquest  holds  it  according 
to  its  own  institutions  and  laws.  And  the  relation  in  which  the 
port  of  Tampico  stood  to  the  United  States  while  it  was  occupied 
by  their  arms,  did  not  depend  upon  the  laws  of  nations,  but  upon 
our  own  Constitution  and  Acts  of  Congress.  The  power  of  the 
President,  under  which  Tampico  and  the  State  of  Tamaulipas  were 
conquered  and  held  in  subjection,  was  simply  that  of  a  military 
commander  prosecuting  a  war  waged  against  a  public  enemy  by 
tin;  authority  of  his  government.  And  the  country  from  which 
these  goods  were  imported  was  invaded  and  subdued,  and  occu- 
pied as  the  territory  of  a  foreign  hostile  nation,  as  a  portion  of 
Mexico,  and  was  held  in  possession  in  order  to  distress  and  har- 
ass the  enemy.  While  it  was  occupied  by  our  troops,  they  were 
in  an  enemy's  country,  and  not  their  own:  the  inhabitants  were 
still  foreigners  and  enemies,  and  owed  to  the  United  States  noth- 
ing more  than  the  submission  and  obedience,  sometimes  called 
temporary  allegiance,  which  is  due  from  a  conquered  enemy  when 
he  surrenders  to  a  force  which  he  is  unable  resist.  But  the 
boundaries  of  the  United  States,  as  they  existed  when  war  was 
declared  against  Mexico,  were  not  extended  by  the  conquest; 
nor  could  they  be  regulated  by  the  varying  incidents  of  war,  and 


APPENDIX. 

be  enlarged  or  diminished  as  the  armies  on  either  side  advanced 
or  retreated.  Thej  remained  unchanged.  Ami  ever]  place 
which  was  oul  of  the  limits  of  the  United1  States,  as  previous!}  es- 
tablished by  the  political  authorities  of  the  government,  was  Btill 
foreign,  nor  did  our  laws  extend'  over  it.  Tampico  was  therefore 
a  foreign  port  when  this  shipmenl  was  made. 

Again,  there  was  no  Act  <>r  Congress  establishing  a  custom- 
house at  Tampico,  nor  authorizing  the  appointment  of  a  colh 
a  ml.  consequt  ml;. .  there  was  no  officer  01  the  United  States  author- 
ized bj  law  to  granl  the  clearance  and  authenticate  the  i'0 
manifesl  of  th  In  the  manner  directed  bj  lav 

voyage  is  from  one  port  of  "the   United   States  to  another.     The 
aracti  r  of  collector  in  this  instani 
"^.'.',v  as  such  under  th  authority  of  the  military  commander,  and  in  obedir 
ers ;  and  the  duties  h   exacted  and  th  regulations  he 
ot  those  prescribed  by  law,  but  byth  President  in  his 
■  of  command*  r-in-chief.    The  custom-house  was  established 
in  an  enemy's  count  apons  of  war.     h  was  es- 

tablished, nol  for  the  purpose  of  giving  to  the  people  of  Tamaul- 
ipas  the  benefits  of  commerce  with  the  United  States,  or  with 
An   aci    of  other  countries,  but  as  a  measure  of  hostility,  and  as  apart  of  th 
hostility,      military  operations  in  Mexico;  it  was  a  mode  of  exacting  contri- 
butions from  tin.'  enemy  to  support  our  army,  and  intended  also  to 
cripple  the  resources  of  Mexico,  and  make  it  feel  the  evils  and 
burdens  of  the  war.    The  duties  required  to  be  paid  were  regulat- 
<"oTiini.il-    ed  with  this  view,  and  were  nothing  more  than  contributions  lev- 
j!,'"]-'  !'i':':'  '"/  "i"'n  th<3  enemy,  which  the  usages  of  war  justify  when  an  army 
is  opt  rating  In  th  <  m  my's  country.     The  permit  and  coasting  man* 
ifesl  -rante  1  by  an  officer  thus  appointed,  and  thus  controlled  by 
military  authority,  could  not  be  recognized  in  any  port  of  the 
United'  States  as 'the  documents  required  by  the  Acts  of  Congress, 
when  the  vessel  is  engaged   in  the  coasting  trade,  nor  could  they 
exempt  the  cargo  from  the  payment  of  duties. 

This  construction  of  the  revenue  laws  lias  been  uniformly  given  by 
the  Administrative  Department  of  the  government  in  all  cases  that 
have  conic  before  it.  And  it  has,  indeed,  be.  n  given  in  cases  where 
there  appears  to  have  been  stronger  ground  for  regarding  the  place 
of  shipmenl  as  a  domestic  port.  For  after  Florida  had  been  ceded 
to  the  United  States,  and  the  forces  of  the  United  States  had 
taken  possession  of  Pensacola,  it  was  decided  by  the  Treasury  De- 
partment, that  goods  imported  from  Pensacola  before  an  Act  of 
Congress  was  passed  erecting  it  into  a  collection  district,  and 
authorizing  the  appointment  of  a  collector,  were  liable  to  duty. 
That  is,  that,  although  Florida  had  by  cession  actually  become  a 
part  of  the  United  States,  and  was  in  our  possession,  yet,  under 
our  revenue  laws,  it-  port-  musl  be  regarded  as  foreign  until  they 
were  established  as  domestic  by  an  Act  of  Congress,  and  it  appears 
that  this  decision  was  sanctioned  at  the  time  by  the  Attorney- 
General  of  the  United  States,  the  law  officer  of  the  Government. 
And.  although  not  so  directly  applicable  to  the  case  before  us,  yet 
the  decisions  of  the  Treasury  Department  in  relation  to  Amelia 
Island  and  certain  ports  in  Louisiana  after  that  province  had  been 
ceded  to  the  United  States  were  both  made  upon  the  same 
And  in  the  latter  case,  after  a  custom-house  had  been 
i  ■•.  ,.t  New  Orleans,  the  collector  at  that  place  was 
;„  as  foreign  ports  Baton  Rouge  and  other  set- 


APPENDIX.  329 

tleraents  still  in  the  possession  of  Spain,  whether  on  the  Missis- 
sippi, Iberville,  or  the  sea-coast.  The  Department,  in  no  instance 
that  we  are  aware  of,  since  the  establishment  of  the  Government, 
has  e\er  recognized  a  place  in  a  newly-acquired  country  as  a 
domestic  port  from  which  the  coasting  trade  might  be  carried  on, 
unless  It  had  been  previously  made  so  by  Act  of  Congress. 

The  principle  thus  adopted  and  acted  upon  by  the  Executive 
Department  of  the  government  has  been  sanctioned  by  the  de- 
cisions in  this  Court  and  the  Circuit  Courts  whenever  the  question 
came  before  them.  We  do  not  propose  to  comment  upon  the  dif- 
ferent cases  cited  in  the  argument. ,  It  is  sufficient  to  say  that 
there  is  no  discrepancy  between  them.  And  all  of  them,  so  far  as 
they  apply,  maintain  that  under  our  revenue  laws  every  port  is 
regarded  as  a  foreign  one  unless  the  custom-house  from  which  the 
vessel  clears  is  within  a  collection  district  established  by  Act  of 
Congress,  and  the  officers  granting  the  clearance  exercise  their 
functions  under  the  authority  and  control  of  the  laws  of  the  United 
States. 

In  the  view  we  have  taken  of  the  question,  it  is  unnecessary  to 
notice  particularly  the  passages  from  eminent  writers  on  the  laws 
of  nations  which  were  brought  forward  in  the  argument.  They 
speak  altogether  of  the  rights  which  a  sovereign  acquires,  and  the 
powers  he  may  exercise  in  a  conquered  country,  and  they  do  not 
bear  upon  the  question  we  are  considering.  For  in  this  country 
the  sovereignty  of  the  United  States  resides  in  the  people  of  the 
several  States,  and  they  act  through  their  representatives,  accord- 
ing to  the  delegation  and  distribution  of  powers  contained  in  the 
Constitution.  And  the  constituted  authorities  to  whom  the  power 
of  making  war  and  concluding  peace  is  confided,  and  of  determin- 
ing whether  a  conquered  country  shall  be  permanently  retained 
or  not,  neither  claimed  nor  exercised  any  rights  or  powers  in  rela- 
tion to  the  territory  in  question,  but  the  rights  of  war.  After  it 
was  subdued,  it  was  uniformly  treated  as  an  enemy's  country,  and 
restored  to  the  possession  of  the  Mexican  authorities  when  peace 
was  concluded.  And  certainly  its  subjugation  did  not  compel  the 
United  States,  while  they  held  it,  to  regard  it  as  a  part  of  their 
dominions,  nor  to  give  to  it  any  form  of  civil  government,  nor  to 
extend  to  it  our  laws. 

Neither  is  it  necessary  to  examine  the  English  decisions  which 
have  been  referred  to  by  counsel.  It  is  true  that  most  of  the 
States  have  adopted  the  principles  of  English  jurisprudence  so  far 
as  it  concerns  private  and  individual  rights.  Anil  when  such 
rights  are  in  question,  we  habitually  refer  to  the  English  decisions, 
n  only  with  respect,  but  in  many  cases  as  authoritative.  But  in 
the  distribution  of  political  power  between  the  great  departments 
of  government,  there  is  such  a  wide  difference  between  the  power 
conferred  on  the  President  of  the  United  States  and  (lie  authority 
and  sovereignty  which  belong  to  the  English  crown,  that  it  would 
be  altogether  unsafe  to  reason  from  any  supposed  resemblance  be- 
tween them,  either  as  regards  conquest  in  war,  or  any  other  subject 
where  the  rights  and  powers  of  the  executive  arm  of  the  Govern- 
ment are  brought  into  question.  Our  own  Constitution  and  form 
of  government  must  be  our  only  guide.  And  we  are  entirely 
satisfied  thai  under  the  Constitution  and  laws  of  (lie  United  Stales 
Tampico  was  a  foreign  port,  within  the  meaning  of  the  Act  of 
1816,  when  these  goods  were  shipped,  and  that  tin'   cargoes  were 


APPENDIX. 


liable  to  t hu  duty  charged  upon  them.     Ami  we  shall  certify  ac« 
cordinjrh  t<>  the  (in  uil  ( lourt 


Cross         Harrison,  16  Howard'!  S.  C.  Rep.  189. 

••  [ndeed,  from  the  letter  of  the  then  Se<  retarj  of  State,  and 

Groin  iliat  of  the  Secretary  of  the  Treasury,  we  cannol  doubl  dial 

the  action  of  t      ' '  oft  altfon  ia  was  recognized  as 

md  lawful  by  Mr.  Polk  and  his  cabinet     We  thini  it 
"nor-  iii".  i       ii  .1      • 

n   -  a  i  ..littul  and  correct  recognition  under  all  the  circumstances, 

military  and  when  we  Bay  rightful,  we  mean  that  ii  was  constitutional,  al- 
PncoTlecUng ^ou9^  ' '"": 'lnss  !""!  ""'  /"'ss"l  cm  act  to  extend  the  collection  of 
revenui  d  import  duties  ti>  the  porta  of  California- 

California,  or  the  port  of  San  Francisco,  had  be<  d  captured  by 
the  arms  of  the  United  States  as  early  as  Lfi46.     Shortly  after- 
w  urd,  the  United  States  had  military  possession  of  all  of  Upper 
s  rent  California     Early  in   1847,  the  President,  as  constitutional  Com- 
1  ,1"'  mander-in-t  "  iefoftfu  army  and  navy,  authorized  the  military  and 
to  iustitute  naval  commander  of  our  forces  in  California  to  exercisi  th  belligeri 
i  jhts  of  a  rum jin  ror,  and  in  form  a  civil  govt  rnmentfor  the  <-<>n- 
.inl'iit '/'"''' '!  country,  and  to  impost  duties  on  imports  ami  tonnage  as 
Cali- military  contributions  tin-  the  support  of  tin-  government  ami  of  the 
fornia.         armywhich  had  the  conquest  in  possession.     We  will  add,  byway 
of  note,  to  this  opinion,  references  to  all  of  the  correspondence  of 
the  government  upon  this  subject  :  now  only  referring  to  the  letter 
of  the  Secretary  of  War  to  General  Kearney,  of  the  loth  of  May, 
1847,  which  was  accompanied  with  a  tariff  of  duties  on  imports 
ami  tonnage,  which  had  been  prepared  by  the  Secretary  of  the 
Treasury,  with  forms  of  entry  ami  permits  for  landing 
of  which  was  reported  by  the  Secretary  to  the  President  on   the 
30th  of  March,  1847.    Senate  Doc.  No.  1,  1st  Ses<..  SOth  Congress, 
X,,  doubt  "f  1 s  l  "•  pp-  56  <".  583.     No  one  can  doubt  that  these  orders  of /he  Presi- 
aothority.    dent,  and  the  action  of  our  army  and  navy  commander  in  California 
in  conformity  with  them,  were  according  to  the  hnr  of  arms  awl  the 
right  of  conquest,  or  that  they  were  operative  until  the  ralijicalion  and 

exchange  of  a  treaty  of  peace 

"The  plaintiffs,  therefore,  can  have  no  right  to  the  return  of 
any  moneys  paid  by  them  as  duties  on  foreign  merchandise  in  San 
Francisco  up  to  that  date.     Until  that  time  California  had  not 
been  ceded  in  \]u-:  to  the   United  States,  but  it  was  a  conquered 
territory  within  which  the  United  States  were  exercising  belliger- 
ent  rights,  and  whatever  sums  were  received  for  duties  upon 
foreign  merchandises,  they  were  paid  under  them." 
After  treaty      But  after  tht  ratification  of  the  treaiy,  California  became  apart  of 
rnia    fa  Uniied  States,  or  a  ceded,  conquered  territory.    Our  inquiry  here 
is  to  be  whether  or  not  the  cession  gave  any  right  to  the  plaintiffs 
dcon-  to  have  the  duties  restored  to  them  which  they  may  have  paid  be- 
ri'torv'1  Ur  tween  the  ratifications  and  exchange  of  the  treaty  and  the  notifi- 
cation of  that  fact  by  our  Government  to  the  Military  Governor  of 
California.     It  was  not  received  by  him  until  two  months  after  the 
ratification,  and  not  then  with  any  instructions  or  even  remote 
intimation  from  the  President  (hat  the  civil  and  military  government, 
riyii  rind     which  had  been  instituted  'luring  the  war,  was  discontinued.     Up  to 
pov'f'rn'ment tnat  time,  whether  such  an  intimation  had  or  had  not  been  given, 
luring    the  duties  had  been  collected  under  the  war  tariff,  strictly  in  confbr- 

."■'"■,  ,in>,"'  mitv  with  the  instructions  which   had  been  received  irom  Wash- 
toted  by  Ui<-  . 
I.,     lent    lngton 


APPENDIX.  331 


The  ratification  of  the  treaty  of  peace  was  proclaimed  in  Cali- 
fornia by  Colonel  Mason,  on  the  7th  of  August,  1848.  Up  to  this 
time,  it  must  be  remembered  that  Captain  Folsom,  of  the  Quarter- 
master's Department  of  the  Army,  had  been  the  collector  of  duties 
under  the  war  tariff.  On  the  9th  of  August  he  was  informed  by 
Lieut.  Halleck,  of  the  Engineer  Corps,  who  was  the  Secretary  of 
State  of  the  Civil  Government  of  California,  that  he  would  be  re- 
lieved as  soon  as  a  suitable  citizen  could  be  found  for  his  successor. 
He  was  also  told  that  "  the  tariff  of  duties  for  the  collection  of 
military  contributions  was  immediately  to  cease,  and  that  the 
revenue  laws  and  tariff  of  the  United  States  will  be  substituted  in 
its  place."  The  view  taken  by  Governor  Mason  of  his  position  has 
been  given  in  our  statement.  The  result  was  to  continue  the  exist- 
ing government,  as  he  had  not  received  from  Washington  definite 
instructions  in  reference  to  the  existing  state  of  things  in  California. 

His  position  was  unlike  anything  that  had  preceded  it  in  the 
history  of  our  country.  The  view  taken  of  it  by  himself  has  been 
given  in  the  statement  in  the  beginning  of  this  opinion.  It  was 
not  without  its  difficulties  both  as  regards  the  principle  upon 
which  he  should  act,  and  the  actual  state  of  affairs  in  California. 
He  knew  that  the  Mexican  inhabitants  of  it  had  been  remitted  by 
the  treaty  of  peace  to  those  municipal  laws  and  usages  which  pre- 
vailed among  them  before  the  territory  had  been  ceded  to  the 
United  States,  but  that  a  state  of  things  and  population  had  grown 
up  during  the  war,  and  after  the  treaty  of  peace,  which  made 
some  other  authority  necessary  to  maintain  the  rights  of  the  ceded 
inhabitants  and  of  immigrants,  from  misrule  and  violence.  He 
may  not  have  comprehended  fully  the  principle  applicable  to  what 
he  might  rightly  do  in  such  a  case,  but  he  felt  rightly,  and  acted 
accordingly.  He  determined,  in  the  absence  of  all  instruction,  to 
maintain  the  existing  government.  The  territory  had  been  ceded 
as  a  conquest,  and  was  to  be  preserved  and  governed  as  such  until 
the  sovereignty  to  which  it  had  passed  had  legislated  for  it.  That 
sovereignty  was  the  United  States,  under  the  Constitution,  by 
which  power  had  been  given  to  Congress  to  dispose  of  and  make 
all  needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States,  with  the  power  also  to 
admit  new  States  into  this  Union  with  only  such  limitations  as  are 
expressed  in  the  section  in  which  this  power  is  given.  The  gov-  Origin  of 
eminent  of  which  Colonel  Mason  was  the  executive,  had  its  origin  this  govern- 
in  the  lawful  exercise  of  a  belligerent  right  over  a  conquered  territory.  ' 

It  had  been  instituted  during  the  war  by  the  command  of  the  Presi-  How  insti- 
dent  of  the  United  States.     It  was  the  government  when  the  territory tuted- 
was  ceded  as  a  conquest,  and  it  did  not  cease  as  a  matter  of  course,  it  did   not 
or  as  a  necessary  consequence  of  the  restoration  of  peace.      The  cease  by 

«•  i  rc^t  Ot"l  t  If  Ml 

President  might  have  dissolved  it  by  withdrawing  the  army  and  navy0f  peace; 
officers  who  administered  it,  but  lie  did  not  do  so.     Congress  could  Dissolved 
have  put  an  end  to  it,  but  that  was  not  done.     The  right  inference  by  power  or 
from  the  inaction  of  both  is,  that  it  was  meant  to  be  continued  Wfc-or  by  '<  :,,'„. 
til  it  had  been  legislatively  changed.     No  presumption  of  a  contrary  gresa. 
intention  can  be  made.     Whatever  may  have  been  the  causes  of 
the  delay,  it  must  be  presumed  that  the  delay  was  consist  ml  with 
the  true  policy  of  the  government.     And  the  more  so  as  it  was 
continued  until  the  people  of  the  territory  met  in  convention   to 
form  a  state  government  which  was  subsequently  recognized  by 
Congress  under  its  power  to  admit  new  States  into  the  Union. 

11 


APPENDIX. 


In  confirmation  "i  whal  bat  been  6aid  in  respect  to  the 
<    •!  jrt  ss  over  this  u  rntory,  anil  the  continuance  <;/  tin  civii 
t  war  right,  ernment  established  as  a  war  right,  until  Congress  acted  upon  the 
subject,  we  refer  to  two  of  tin   decisions  of  this  Court,  in  one  <»t 
which  it  issaidjin  respect  to  the  treaty  by  which  Florida  was  ceded 
to  the  United  States,'1  tj  is  the  law  of  the  Land,  and 

admits  the  inhabitants  of  Florida  t « »  the  enjoyment  qftht  privileges, 
~'"i'  rights,  and  im  citizens  of  tin   I  .It  is  mi- 

nr.r--.n-v  to  inquire  whether  this  is  not  then*  condition  independ- 
ently of  stipulations.     They  do  not,  however,  partici 
power, —  they  do  not  share  w  tin  government  until  Florida  shall  be- 
hi  the  mean  time  Florida  continues  to  be  a  territory 
of  the  United  States,  guarded  by  virtue  of  thai  clause  of  the  Con- 
stitution which  empowers  Congress  to  make  all  needful  rules  and 
regulations  respecting  the  territory  or  other  property  belonging 
■  of    tu  the  United  States.     Perhaps  tin  power  of  governing  <i  ten 
territory?-^  belonging  to  the  United  States,  which  has  not  by  becoming  a  Slate 
how   it'  re-  acquired  the  means  of  self-government,  may  result  necessarily  from 
suite,  facts  '/fit  it  is  not  within  the  jurisdiction  of  any  particular   - 

and  is  within  the  power  awl  jurisdiction  of  tin 
right  to  govern  may  be  the  natural  consequences  of  the  right 
to  acquire  territory."     American  Insurance  Company  vs.  Can- 
ter. 1   Peters,  542,  543.     (See  also  U.  S.  vs.  Gratiot, "  14  Peters, 

526.) 

When  mill-     "  Our  conclusion,  from  what  has  been  said,  is,  thai  the  civilgovern- 
ernn  ."',''    '"' "'  "*'  California,  organic  d  as  it  was  from  n  right  ofconq       ,  did 
California     not  cease  or  become  defunct  in  consequence  of  the  signature  of  the 
'■        treaty,  or  from  Us  ratification.     We  think  it  was  continued  over  >> 
xquest,  without  any  violation  of  the  Constitution  or  laws  of 
the  United  Stab  s,  and  that,  until  Congress  legislated  for  it,  the  du- 
ties upon  foreign  goods  imported  into  San  Francisco  were  legally 
demanded  and  lawfully  received  by  Mr.  Harrison,  the  collector  of 
the  port,  who  received  his  appointment,  according  to  Instructions 

from  Washington,  from  Governor  Mason." 

wiiat  laws     •■The  second  objection  rtates  a  proposition  larger  than  the  case 
are  in  force  admits,  and  more  so  than  the  principle  is.  which  secures  to  the  in- 
habitants of  a  ceded  conquest  the  enjoyment  of  what  had  been 
their  laws  before,  until  they  have  been  changed  by  the  new  sov- 
ereignty to  which  it  has  been  transferred.     In  this  case, -foreign 
Right  of  the  trade  had  been  changed  in  virtut  of  a  belligerent  right,  before  the  ter- 
conqueror    ritofy  was  ceded  as  a  conqw  ■■'.  and  after  thai   had  been  done  by  a 
trade?    "'     treaty  of  peace,  the  inhabitants  were  not.  remitted  to  those  regula- 
tions of  trad.-  under  which  it  was  carried  on  whilst   they  were  un- 
der Mexican  rule:  because  they  had  pa  —  I  from  thai  sovereignty 
to  another,  whose  privilege  it  was  to  permit  the  existing  regul  - 
of  trade  to  continue,  and  by  which  only  they  could  be  changed. 
We  have  said,  in  a  previous  part  of  this  opinion,  that  the  sover- 
eignly of  a  nation  regulated  trade  with  foreign  nations,  and  that 
none  could  be  carried  on  except  as  the  sovereignly  permits  it  to  be 
done.     In  our  situation,  that  sovereignty  is  the  constitutional  dele- 
gation to  Congress  of  the  power  '  to  regulate  commerce  with  for- 
eign nations  and  among  the  several   States,  and  with  the  Indian 

tribes."' 

■•  I i 1 1 1  we  do  not  hesitate  to  say,  it'  the  reasons  given  for  our  cori- 
elusions  in  this  case  were  not  sound,  that  other  considerations  would 
bring  us  to  the  same  results.     The   plaintiffs  carried  these  goods 


APPENDIX.  33, 


voluntarily  into  California,  knowing  the  state  of  things  there.  They 
knew  that  there  was  an  existing  civil  government,  instituted  by  the 
authority  of  the  President  as  commander-in-chief  of  the  army  and 
naval  forces  of  the  United  States,  by  the  right  of  conquest ;  that 
it  had  not  ceased  when  these  first  importations  were  made  ;  that  it 
was  afterwards  continued,  and  rightfully,  as  we  have  said,  until 
California  became  a  State,  that  they  were  not  coerced  to  land  their 
goods,  however  they  may  have  been  to  pay  duties  upon  them  ;  that 
such  duties  were  demanded  by  those  who  claimed  the  right  to  rep- 
resent the  United  States  (who  did  so,  in  fact,  with  most  com- 
mendable integrity  and  intelligence)  ;  that  the  money  collected  has 
been  faithfully  accounted  for,  and  the  unspent  residue  of  it  received 
into  the  treasury  of  the  United  States ;  and  that  the  Congress  has 
by  two  acts  adopted  and  ratified  all  the  acts  of  the  government 
established  in  California  upon  the  conquest  of  that  territory,  rela- 
tive to  the  collection  of  imposts  and  tonnage,  from  the  commence- 
ment of  the  late  war  with  Mexico  to  the  12th  November,  1849, 
expressly  including  in  such  adoption  the  moneys  raised  and  expend- 
ed during  that  period  for  the  support  of  the  actual  government  of 
California  after  the  ratification  of  the  treaty  of  peace  with' Mexico. 
This  adoption  sanctions  what  the  defendant  did.  It  does  more  ;  it 
affirms  that  he  had  legal  authority  for  his  acts.  It  coincides  with 
the  views  which  we  have  expressed  in  respect  to  the  legal  liability 
of  the  plaintiff  for  the  duties  paid  by  them,  and  the  authority  of 
the  defendant  to  receive  them  as  Collector  of  the  port  of  San  Fran- 
cisco." 


Jecker  vs.  Montgomery,  18  Howard's  S.  C.  Rep.  112. 

"  As  a  principle  applicable  to  the  first  of  these  inquiries,  it  may  ^n  citizens 
be  averred  as  a  part  of  the  law  of  nations,  —  forming  a  part,  too,  of  States  at 
of  the  municipal  jurisprudence  of   every   country,  —  "that   in   a  " ''" '/'', ? ',ldi 
state  of  war  between  two  nations,  declared  by  the   authority  in  other, 
whom  the  municipal  constitution  vests  the   power  of  making  war, 
the  two  nations  and  all  their  citizens  or  subjects  are  enemies  to  each 
other."     The  consequence  of  this  state  of  hostility  is,  that  all  inter- 
course and  communication  between  them  is  unlawful.    Vide  Wheaton 
on  Maritime  Captures,  ch.   7,  p.  200,  quoting  from  Bynkershoeck 
this  passage:  '  Ex  natura  belli  commercia  inter  hostes  cessare,  non 
est  dubitandum.     Quamvis  nulla  specialis  sit  commerciorum  pro 
hibitio,  ipso  tamen  jure  belli,  commercia  inter  hostes  esse  vetita, 
ipsa?  indictiones  bellorum  satis  declarant.' 

"The  same  rule  has  been  adopted,  with  equal  strictness,  by  this 
court.  In  the  case  of  The  Rapid,  reported  m  8  Cranch,  155,  the 
claimant,  a  citizen  of  the  United  Slates,  had  purchased  goods  in 
the  enemy's  country,  a  long  time  before  the  declaration  of  ivar,  and 
had  deposited  them  on  an  island,  near  the  boundary  line  bel  ween  (lie 
two  countries.  Upon  the  breaking  out  of  hostilities,  his  agent-  had 
hired  the  vessel  to  proceed  to  the  place  of  deposit,  and  bring  away 
these  goods.    Upon  her  return,  tne  vessel  was  captured,  and  with 

tin;  cargo  was  condemned  as  prize  of  war  lor  trading  with  the 
enemy.  In  applying  the  law  to  this  state  of  facts,  this  Courl  said, 
and  said  unanimously,  "  That  the  universal  sense  of  nations  lias 
acknowledged  the  demoralizing  effects  that  would  n  mltfrom  tin  ad- 


\1T,  \l'l\. 


1 


Non    inter 

course. 


Tra'le 
lav  lul. 


arse.      The  vahol 
om,  and  must  be  reconciled  to  submit  loom  com- 
mon  (  ■        I  lual  qf  the  one  nation   must  a 
y  individual  •  •/  th>   other  nation  as  his  own  enemy,  ' 

But,  after  1 1  ■  <  •  i  >  1  i  1 1  _r  w  h.it  isthedutj  of  the 
citizen,  i!i<'  # j n » •  - 1 i . . •  WTiat  is  the  consequence  of  a  breach 

of  that  duty?    The  law  of  prize  is  ;i  pari  <  >t'  1 1n-  h\\  of  uationa. 
In  it,  a   '  /  in  trade,  independen  ly  of  the 

character  <>/'  the  trader,  who  pursues  or  directs  it.     Condem  ■ 
to  the  ik,  of  t  is  -  qually  tin  i'nti  <;/'  the  property  of  the  b<  l- 

and  of  tin  property  engaged  in  anti-neutral  trade.     Bu   u 
r  an  ally  may  be  in  ahostili    trade,  and  thereby 

erty       !       fate  of  thost   in  who 
V      i     -.     (    urt  say.  ■•  I:',  by  trading,  in  prize  law  was  meanl  that 
signification  of  the  term  which  consists  in  negotiation  or  a 

of  l/i'    /•</'< .      /• 
ftht  rult  is  to  cut  off  all  communication  or  urinal 
■■  intercourst  lulu-tin  individuals  of  'I"   bellig  rent  nations. 
i   lnis.  therefore,   no  necessary    con 
with  /In  offence.     I  ■•  lual  hostility,  is  the 

against  which  thi  operation  qf  tin  ruli  is  directed." 
"The  same  course  of  decision  which  lias  established  that  property 
qf  a  subjt  ■■:  h  tin  i  in  mi/  is  forf  ited,  lias 

decided  also  that  it  is  forfeited  as  prize.     The  ground  of  the  for- 
feiture is.  that  it  is  taken  adhering  to  the  enemy,  and  theref 
proprietor  is  pro  hac  vice  to  be  considered  an  enemy.     IV(/e  also 
Wheaton  on   Captures,  p.  219;   and  1  C.  Robinson,  '219,  the  case 
ol  The  Nelly." 

Attempts  li  ive  1 a  made  to  evade  the  rule  of  public  law,  by 

the  interposition  of  a  neutral  port  between  the  shipment  from  the 
belligerent  port  and  their  ultimate  destination  in  theenemy's  coun 
try  :  but  in  all  such  cases  the  goods  have  been  condemned  as  hav- 
ing been  taken  in  a  course  of  commerce  rendering  them  liable  to 
confiscation  :  and  it  has  1 n  ruled  that,  without  hc<  nse  from  gov- 
ernment, iin  communication,  direct  orindirect,  can  becarried  on  with 
nn-  the  enemy ;  that  the  interposition  of  a  priorport  makes  no  differ- 
ence :  that  all  the  trade  with  the  enemy  is  illegal,  and  the  circum- 
stance that  the  goods  are  to  go  first  to  a  neutral  porl  will  not  make 
it  lawful.  3  ('.  Robinson,  22,  The  Indian  Chief;  and  4  C  Rob- 
inson,  79,  The  Jonge  Pieter 


Dynes  vs.  Hoover,  20  Howard's  S.  C.  Rep.  78. 

The  demurrer  admits  that  the  court  martial  was  lawfully  organ- 
ized ;  that  the  crime  charged  was  one  forbidden  by  law;  that  the 
court  bad  jurisdiction  of  the  charge  as  it  was  made:  that  atrial  took 

the  court  upon  the  charge,  and  the  defendant's  plea  of 
ty;  and  that,  upon  the  evidence  in  the  case,  the  court  found 
Dynes  guilty  of  an  attempt  to  desert,  and  sentenced  him  to  be 
punished,  as  has  already  been  Mated:  that  the  sentence  of  the 
court  was  approved  by  the  Secretary;  and  that,  by  his  direction, 
Dynes  was  brought  to  Washington;  and  that  the  defendant  was 
marshal  for  the  District  of  Columbia;  and  thai  in  receiving  Dynes, 
and  committing  him  to  the  keeper  of  the  penitentiary,  he  obeye  I 

the  President  ol  the  United  States, in  execution  of  the 


APPENDIX.  335 

sentence.      Among  the  powers  conferred  upon   Congress,  by  the 
8th  section  of  the  1st  Article  of  the  Constitution,  are  the  follow- 
ing :  "  to  provide  and  maintain  a  navy ; "  "  to  make  rules  for  the 
government  of  the  land  and  naval  forces."     And  the  Sth  Amend-  Construe 
ment,  which  requires  a  presentment    of  a  grand  jury  in  cases  ofXum  "f   s|h 
cdpital  or  otherwise  infamous  crime,  expressly  excepts  from  its  opera-  Grand  'jury 
tions  "  cases  arising  in  the  land  or  naval  forces."     And  by  the  2d  not  requir- 
section  of  the  2d' Article  of  the  Constitution,  it  is  declared  that  ^cin  cases' 
"  The  President    shall    be    commander-in-chief  of  the    army   and 
navy  of  the  United  States,  and  of  the  militia  of  the  several  States, 
when  called  into  the  actual  service  of  the  United  States." 

These  provisions  show  that  Congress  has  the  power  to  provide  for  Power  of 
the  trial  and  punishment  of  military  and  naval  offences,  in  the  manner  Congress  to 
then  and  now  practiced  by  civilized  no/inns  ;  and  that  the  power  to  do  "':,!' ! 
so.  is  given,  without  any  connection  between  it  and   the  Sd  Article  of  raentofmii- 
the  Constitution,  defining  the  judicial  power  of  the    United  States ;  itary,  and 
indeed,  that  the  two  powers  are  entirely  independent  of  each  other. .  .  fences. 

"  The  objection  is  ingeniously  worded,  was  very  ably  argued,  and  Has  nocon- 
we  may  add,  with  a  clear  view  and  knowledge  of  what  the  law  is  nection 
upon  such  a  subject,  and  how  the  plaintiff's  case  may  be  brought  dicial  pow- 
under  it,  to  make  the  defendant  responsible  on  this  action  for  false  er. 
imprisonment.     But  it  substitutes  an  imputed  error  in  the  finding 
of  the   Court,  for  the  original  subject  matter   of  its  jurisdiction, 
seeking  to  make  the  marshal  answerable  for  his  mere  ministerial  exe-  jrnrslial  uot 
cution  of  a  sentence,  which  the  Court  passed,  the    Secretary  of  the  liable  for 
Navy  approved,  and  which  the  President  of  the  United  States,  as  "ct"  hl°exe- 
constitutional   Commander-in-Chief  of  the  army  and    navy  of  the  eating   sen- 
United  States,  directed  the  marshal  to  execute,  by  receiving  the  tence,  etc. 
prisoner  and  convict,  Dynes,  from  the  naval  officer  then  tiaving 
him  in  custody,  to  transfer  him  to  the  penitentiary,  in  accordance 
with  the  sentence  which  the  Court  had  passed  upon  him 

"  But  the  case  in  hand  is  not  one  of  a  court  without  jurisdiction 
over  the  subject  matter,  or  that  of  one  which  has  neglected  the 
forms  and  rules  of  procedure  enjoined  for  the  exercise  of  juris- 
diction.    It  was  regularly  convened  ;  its  forms  of  procedure  were 
strictly  observed  as  they  are  directed  to  be  by  the  statute  ;  and  if 
its  sentence  be  a  deviation  from  it,  which  we  do  not  admit,  it  is 
not   absolutely  void.     Whatever  the    sentence  is,  or  may  have 
been,  as  it  was  not  a  trial  by  court  martial  taking  place  out  of  the 
United  States,  it  could  not  have  been  carried  into  execution  but 
by  the  confirmation  of  the  President,  had  it  extended  to  loss  of 
life,  or  in  cases  not  extending  to  loss  of  life,  as  this  did  not,  but  by 
the  confirmation  of  the   Secretary  of  the  Navy,  who  ordered  the 
Court.     And  if  a  sentence  be  so  confirmed,  it  becomes  final,  and  Sentence  oi 
must  be  executed,  unless  the  President  pardon  the  offenders.    It  is  in  <-<>uh  mar- 
the  nature  of  an  appeal  to  the  officer  ordering  the  court,  who  is  made 
by  the  law  the  arbiter  of  the  legality  and  propriety  of  the  court's 
sentence.     When  confirmed  it  is  altogether  beyond  the  jurisdiction  civil  courts 
"/'  any  civil  tribunal  whatever,  unless  it  shall  be  in  a  case  in  which  'vy.'  '!"  ■'"■ 
the  court  had  not  jurisdiction  over  the  subject  matter  or  charge,  orovertnesen. 
one  in  which,  having  jurisdiction  over  the  subject  matter,  it  hastence. 
failed  to  observe  the  rules  prescribed  by  the  statute  for  its  exercise, 
In  such  cases,  as  has  just  been  said,  all  of  the  parties  to  Buch  ille-  Except. 
gal  trial  are  trespassers  upon  a  party  aggrieved  by  it,  and  In1  may 
recover  damages  from  them  on  a  proper  suit  in  a  civil  court,  by 
the  verdict  of  a  jury." 


APPENDIX. 


9  hicb  have  been  convener] 
„.  regularly,  and  bave  proceeded  legally,  and  by  which  punishments 
i  are  directed,  not  forbidden  by  law,  or  which  are  according  to  the 
:l;i\\>  and  customs  of  the  sea,  civil  courts  have  nothing  to  do,  nor 
are  they  in  any  way  altcrablt  by  them.     If  il  were  otherwise,  the 
civil  courts  would  virtually  administer  the  rules  and  articles  of 
war,  irrespective  of  those  to  whom  that  duty  and  obligation  has 
been  confided  by  the  la wb  of  the  United   States,  from  whose  de- 
cisions no  appeal  or  jurisdiction  of  any  kind  has  been  given  to 
the  civil  magistrate  or  civil  courts.     But  we  repeat,  if  a  court 
Except.       martial  1 1  a  <  no  jurisdiction  over  the  subject  matter  of  tht  cha 

has  been  convened  to  try,  or  shall  inflict  a  punishment  forbidden 
by  (he  l">r,  though  its  sentence  Bhall  be  approved  by  the  officers 
having  a  revisorj  power  of  it,  civil  courts  may,  on  an  action  by  a 
party  aggrieved  bj  it,  inquire  into  the  want  of  die  court's  juris- 
diction, and  give  him  redress.     (Harman  vs.  Tappenden,  1   East 
555  :  as  to  ministerial  officers,  Marshall's  Case,  10  Cr.  76  ;  Morrison 
Sloper,  Wells,  30;  Parton  vs.  Williams,  B.  and  A.  880;  and  as 
to  justices  of  the  peace,  by  Ld.  Tenterden,  in  Basten  vs.  Carew, 
3  6.  and  C.  653 ;  Mules  vs.  Calcott,  6  Bins.  85."    .    .         .    . 
imprison-        "In  this  case  all  of  us  think  that  the  court  which  tried  Dynes  had 
penitenti-   jurisdiction  over  the  subject  matter  of  the  charge  against  him; 
that  the  sentence  of  the  court  against  him  was  not  forbidden  by 
law;  and  that  having  been  approved  by  the  Secretary  of  the  Navy 
as  a  fair  deduction  from  the  17th  Article  of  the  Act  of  April  23, 
"r'ty    18o'»,  and  that  Dynes  having  been  brought  to    Washington  as  a 
med?8 prisoner  by  the  direction  of  the  Secretary,  that  the  President  of 
the   United   States,  as  constitutional   Commander-in-Chief  of  the 
army  and  navy,  and  in  virtue  of  his  constitutional  obligation  that 
he  shall  take  care  that  the  laws  be  faithfully  executed,  violated 
no  law  in  directing  the  Marshal  to  receive  the  prisoner  Dynes  fro  a 
the  officer  commanding  the  United  States  steamer  Engineer,  for 
the  purpose  of  transferring  him  to  the  penitentiary  of  the  District 
of  Columbia,  and,  consequently,  tint  the   Marshal  is  not  answer- 
able in  this  action  of  trespass  and  falsi  imprisonment." 


Leitensdorfer  vs.  Webb,  20  Howland's  S.  C.  Rep.  I7fi. 

(  ivil  gov-         "Upon  the  acquisition,  in   the  year  1846*,  by  the  arms  of  the 

prnmentof  United  State-,  of  the  Territory  of  New    Mexico,  the  civil   govern- 

tbrown  went  of  this  territory  having  been  overthrown,  the  officer,  General 

conquest  Kearney,  holding  possession  for  the  United  States,  in  virtue  of  the 

Provisional  power  of  conquest  and  occupancy,  and  in  obedience  to  the  duty  of 

ament  maintaining  the  security  of  tht  inhabitants  in  th  ir  pt  rsons  and  prop- 

'  •[  by  erty,  ordained,  under  the  sanction  and  authority  of  the  United  States, 

v' ''  *  </  provisional  or  temporary  government  for  the  acquired  country.    By 

this  substitution  of  a  new  supremacy,  although  the  former  political 

relations  of  the  inhabitants  were  dissolved, their  private   relations, 

How  fur       their  rights  vested  under  the  government  of  their  former   allegiance, 

former  of  //,,,  ,  arising  from  contract  or  usage,  remained  in  full  force  and 

unchangi  </.  accept  so  far  as  they  were  in  their  nature  and  character 

found  to  be  in  conflict  with  the  Constitution  and  laws  of  the  United 

,.    OB    WITH    ANY    REGULATIONS    WHICH    THE   CONQUERING 

a<l-   and  OCCUPYING  AUTHORITY,    should    ordain      Amongst  the 

ministered    consequences  which  would  be  necessarily  incident  i  ~)  the  change  of 

sovereignty,  would  be  the  appointment  or  control  oj    the  agents  by 


APPENDIX. 


whom  and  the  modes  in  which  the  government  of  the  occupant  should  Conquest 
be  administered,  —  this  result  being  indispensable,  in  order  to  secure.  ?^u  rif'lts 
those  objects  for  which  such  a  government  is  usually  established."        government 

This  is  the  principle  of  the  law  of  nations,  as  expounded  by  the  J™*  officers 
highest  authorities.     In  the  case  of  The  Fama,  in  the  5th  of  Robin-  orc]er  to'  se_ 
inson's  Rep.  p.  106,  Sir  William  Seoft  declares  it  to  be  "  the  settled  curevictory. 
principle  of  the  law  of  nations,  that  the  inhabitants  of  a  conquered 
territory  change  their  allegiance,  and  their  relation  to  their  former 
sovereign  is  dissolved ;  but  their  relations  to  each  other,  and  their 
rights  of  property  not  taken  from  them  by  the  orders  of  the  conqueror, 
remain  undisturbed."     So,  too,  it  is  laid  down  by  Vattel,  book  3d, 
eh.  13,  sect.  200,  that "  the  conqueror  lays  his  hands  on  the  posses- 
sions of  the  state,  whilst  private  persons  are  permitted  to  retain 
theirs  ;  they  suffer  but  indirectly  by  the  war,  and  to  them  the  result 
is  that  they  only  change  masters." 

In  the  ease  of  the  United  States  vs.  Perchiman,  7  Peters,  pp.  86, 
87,  this  court  have  said,  u  It  may  be  not  unworthy  of  remark, 
that  it  is  very  unusual,  even  in  cases  of  conquest,  for  the  conqueror 
to  do  more  than  to  displace  the  sovereign,  and  assume  dominion 
over  the  country.  The  modern  usage  of  nations,  which  has  become 
law,  would  be  violated,  and  that  sense  of  justice  and  right  which 
is  acknowledged  and  felt  by  the  whole  civilized  world  be  outraged, 
if  private  property  should  be  generally  confiscated  and  private  rights 
annulled.  The  people  change  their  allegiance;  their  relation  to 
their  sovereign  is  dissolved  ;  but  their  relations  to  each  other,  and 
their  rights  of  property,  remain  undisturbed."  {Vide  also  the  case 
of  Mitchel  vs.  The  United  States,  9th  ib.  711,  and  Kent's  Com.  vol. 
l,p.  177.) 

Accordingly,  we  find  that  there  was  ordained  by  the  provisioned  Judicial 
Government  a  judicial  system,  which  created  a  superior  or  appellate  5y?tem  or" 
court,  constituted  of  three  judges,  and  circuit  courts,  in  which  thelaws 
in,-/  in  be  administered  by  tin  judges  of  the  superior  or  appellate 
court,  tn  the  circuits  to  which  tiny  should  be  respectively  assign,  d. 
By  the  same  authority,  the  jurisdiction  of  the   Circuit   Courts  to  I"  Courts  es 
held  in  the  several  counti  s  was  declan  d  to  embrace,  1st,  all  criminal  jf  bli®iufLv 
cases  that  shall  nut  be  otherwise  providt  dfor  by  law  •  ami,  2d,  exclu-  power. 
sive  original  jurisdiction  in  nil  civil  easts  which  shall  not  be  cognizable  Jurisdic 
before  the  prefects  and  alcaldes  (  Vide  Laws  of  New  Mexico,  Kear-"""'  etc" 
ney's  Code,  p.  48).     Of  tin  validity  of  these  ordinances  of  the  pro- 
visional government  there  is  made  no  question  with  respect  to  the 
period  during  which  the  territory  was   held   by  the   United  Stales 
as  occupying  conqueror,  and  it   would  seem  to  admit  of  no  doubt 
that  during  the  period  of  their  valid  existence  and  operation,  these 
ordinances  must  have  displaced  and  superseded  every  previous  in- Displaced 
sUtution  of  the  vanquished  or  deposed  political  power  which  was  ^"j^oompaii- 
compatibU  with  them.     Bui  it  has  been  contended,  that   whatever  ble,  etc. 
may  have  been  the  rights  of  the  occupying  conqueror  assuch,  these 
were  all  terminated  by  the  termination  of  the  belligerent  attitude  wiien  ter- 
of  the  'parties,  and  thai,  with  the  close  of  the  contest,   every  institu-  minated. 
tion  whi'-h  had  been  overthrown  or  suspended    would   !><■    revived 
and  reestablished.     They.'///'/'-//  of  this  pretension  is  exposed  by  the 
fact,  that  the  territory  never  was  relinquished  by  the  conqueror, 
nor  restored  to  its  original  condition  or  allegiance,  hut  was  retained 
by  the  occupant   until  possession  was  matured  into  absolute  per- 
manent dominion  and  sovereignty;  and  this,  loo,  under  the  settled 
purpose  of  the  United  Stales,  never  to  relinqui  ih  the  possession  ac- 


\PP!  NI'IX. 


\\  ■  'i.lr.  therefore,  tint  the  ordinan 
institutions  of  the  provisional  government  would  be  > 
modified  b>  the  United  States  alone,  either  by  direct  legislation  on 
tlir  pari  ol  Congress,  or  bj  tha(  of  the  territorial  government  in  the 
exercise  of  powers  delegated  b)  Congress.  Thai  no  power  what- 
ever, incompatible  with  the  Constitution  or  laws  <>!'  the  United 
S  tes,  or  with  the  authority  of  the  provisional  government,  was 
ined  by  the  Mexican  government,  or  was  revived  under  that 
government,  from  the  period  at  which  the  possession  passed  i"  1 1  *  *  * 
authorities  of  tin-  United  Stat 


UNITED    STATES    SUPREME    COURT.      Dbcembeb 

Ti  i:\i.    1863. 

THE    \  AI.I.ANM'.II  AM    CASE. 

Ex  parte,  in  th<  Clement  I..  VaUandigham,  I  ;  on 

\for  -/  unit  of  certiorari  to  the  Judge  Advocate-Gi  neral  of 
!  rmy  of  tl  ■ 

There  is  no  analogy  between  the  power  of  the  United  States  Court  to  issue  writs 
of  a    '  itive  power  by  which  thej  issue  in  England. 

United  States  « lourts  derive  such  power  solely  from  the  » institution  and  Con- 
jionnl  legislation. 

petitions  are  not  within  the  letter  or  spirit  of  the  grants  of  appellate 
jurisdiction  to  this  court. 

A  military  commission  is  not  a  court  within  the  meaning  of  Section  14  of  Act 
of  1789. 

This  Court  has  no  power  to  originate  a  writ  of  a  in  review  or  pro- 

nounce anj  opinion  upon  th<   procei  dings  of  a  militarj  commission. 

Affirmative  words  in  the  Constitution,  giving  this*  ourl  original  jurisdiction 
in  certain  cases,  must  be  construed  negatively  as  to  all  Other  C 


Petitioner         ^'"'  petitioner  was,  on  May  5,  18C3.  arrested  at   his  residence, 
taken  to  Cincinnati,  and  on  the  next   day,  arraigned  before  a  mili- 
tary commission,  appointed  by  Major-General  Burnside,  command- 
ing the  Military  Department  of  Ohio,  on  a  charge  of  having  e  - 
:  sympathies  tor  those  in  arms  against  the  United   States 

thy  ftwreb-  Government,  and  tor  having  uttered  in  a  public  speech  disloyal 

sentiments  and   opinions.     The   petitioner  refused  to  plead,  and 

denied  the  jurisdiction  of  the  commission.     A  plea  of  "  noi  guilty  " 

was  therefore  entered  by  the  order  of  the  commission,  and  the  trial 

proceeded.     Seven  members  of  the  commission  were  present,  ami 

tried  the  charge  according  to  military  law.     The  prisoner  called 

and  cross-examined  witnesses;  had  the  aid  of  counsel,  and  made  a 

written  argument. 

i.      The  finding  and  sentence  were  that  the  petitioner  was  guilty  of 

the  substantial  charges,  and  that  he  be  placed  in  close  confinement 
ten-  .  ,    r.  i  ii,-i 

in  some  fortress  "t  the  |  mted   State-,  there  t<>  be  kepi  during  the 

remainder  of  the  war.     General   Burnside   approved   the  finding 

and  sentence,  and  designated  Fort  Warren  a-  the  place  of  con- 

finement.     On  the  19th  of  May,  1863,  the  President,  in  commuta- 

comrnuted.  tj,„,  ,,f  the  sentence,  directed  the  prisoner  to  be  sent  beyond  our 

military  lines,  which  order  was  executed. 

Mr.  Justice  Wayne  delivered  the  opinion  of  the  Court  in  which 
Nelson,  J.,  concurred.  After  giving  a  detailed  statement  of  the 
facts  above  briefly  Bet  forth,  they  continue  as  follows:  — 

"  It  has  been  urged  in  support  of  the  motion  for  the  writ  of  cer- 


APPENDIX.  33! 

tioraru  and  against  the  jurisdiction  of  a  military  commission  to  try  Constitu- 
the  petitioner,  that  the  latter  was  prohibited  by  the  30th  section  Jionai  ob- 
of  the  Act  of  March  30,  1863,  for  enrolling  and  calling  out  the  na^stated. 
tional  forces,  — 12  Statutes  at  Large,  736,  —  as  the  crimes  punisha- 
ble in  it  by  the  sentence  of  a  court-martial  or  a  military  commission 
applied  only  to  persons  Avho  are  in  the  military  service  of  the 
United  States,  and  subject  to  the  articles  of  war  ;  and  also, 
that  by  the  third  section  of  the  3d  Article  of  the  Constitution,  all 
crimes,  except  in  cases  of  impeachment,  were  to  be  tried  by  juries 
in  the  State  where  the  crime  had  been  committed,  and  when  not 
committed  within  any  State,  at  such  place  as  Congress  may  by 
law  have  directed ;  and  that  the  military  commission  could  have 
no  jurisdiction  to  try  the  petitioner,  as  neither  the  charge  against 
him  nor  its  specifications  imputed  to  him  any  offence  known  to  the 
law  of  the  land  ;  that  General  Burnside  had  no  authority  to  en- 
large the  jurisdiction  of  a  military  commission  by  the  General  Order 
Number  Thirty-eight,  or  otherwise.  General  Burnside  acted  in  the 
matter  as  the  general  commanding  the  Ohio  Department,  in  con- 
formity with  the  instructions  for  the  government  of.  the  armies  of 
the  United  States,  approved  by  the  President  of  the  United  States, 
and  published  by  the  Assistant  Adjutant-General,  by  order  of  the 
Secretaiy  of  War.  on  the  24th  of  April,  1863.* 

It  is  affirmed  in  the  thirteenth  paragraph  of  the  first  section  of 
these  Instructions,  that  "  military  jurisdiction  is  of  two  kinds  :  first, 
that  which  is  conferred  and  defined  by  statute;  second,  that  which 
is  derived  from  the  common  law  of  war.  Military  offences,  under 
the  statute,  must  be  tried  in  the  manner  therein  directed;  but  mil- 
itary offences  which  do  not  come  within  the  statute  must  be  tried 
and  punished  under  tin1  common  law  of  war.  The  character  of  the 
courts  which  exercise  these  jurisdictions  depends  upon  the  local  law 
of  each  particular  country.  In  the  armies  of  the  United  Slates, 
the  first  is  exercised  by  courts  martial;  while  cases  which  do  not 
come  within  the  'rules  and  articles  of  war,'  or  the  jurisdiction  con- 
ferred by  statute  or  court  martial,  are  tried  by  military  commis- 
sions." 

These  jurisdictions  are  applicable,  not  only  to  war  with  foreign 
nations,  but  to  a  rebellion,  when  a  part  of  a  country  wages  war 
against  its  legitimate  government,  seeking  to  throw  oil'  all  alle- 
giance to  it  to  set   up  a  government  of  its  own. 

Our  first  remark  upon  the  motion  for  a  certiorari  is.  that  there 
is  no  analogy  between  the  power  given  l>\  the  Constitution  and 
laws  of  the  United  Slates  In  the  Supreme  Court  and  the  other  in- 
ferior courts  of  the  United  Slates,  and  to  the  judges  of  them  to  issue 
such  processes,  and  the  prerogative  power  by  which  it  is  done  in 
England.  The  purposes  for  which  the  writ  is  issui  d  are  alike,  but 
there  is  no  similitude  in  the  origin  of  the  power  to  do  it.  In  En"-- 
land  the  Couri  of  King's  Bench  has  a  superintendence  over  all 
courts  of  an  inferior  criminal  jurisdiction,  and  may,  by  the  pleni- 
tude of  its  power,  award  a  certiorari  to  have  any  indictment  re- 
moved and  brought  before  it:  and  where  such  certiorari  is  allow- 
able, it  is  awarded  at  the  instance  of  the  king,  because  every 
indictmenf  is  af  the  suit  ofthe  king,  and  he  has  a  prerogative  ol 
suing  in  whatever  court  he  pleases.      The  court-;  of  the   United 

*  They  were  prepared  bv  Francis  Leiber,  LL.  i>..  .■ml  were  revised  by  a 
board  of  (fficers,  of  which  Major-General  E.  A.  Hitchcock  was  president. 

12 


APPENDIX. 


S    ■  ititborit)  to  issue  such  a  writ  from  the  Con  titutionand 

the  legislation  of  t  'ongress.  To  place  the  two  Bourccs  of  the  right 
-u.'  the  writ  in  obvious  contrast,  and  in  application  to  ili«'  mo- 
don  nadering  for  its  exercise  b\  this  Court,  we  w ill  cite  bo 
much  of  tho  third  article  of  the  Constitution  as  «>■  think  will  best 
illustrate  tho  rabject.  "The  judicial  powerof  the  United  Stairs 
Bhall  1»'  vested  in  the  Supreme  Court,  and  in  Buch  inferior  courts 
as  the  Congress  in  n  .  from  time  to  time,  ordain  and  establish." 
judicial  power  shall  extend  to  all  cases  in  law  and  equity,  arising 
under  the  Constitution,  the  laws  of  the  United  States,  and  tr< 
made  or  which  shall  be  made  under  their  authority;  to  ;ill  i 
affecting  embassadors,  other  public  ministers  and  con  a]  ."  etc., 
••ami  in  all  cases  affecting  embassadors,  other  ministers  and  consuls, 
and  those  in  which  a  State  shall  be  a  party,  the  Supreme  I 
shall  have  original  jurisdiction.  In  all  other  cases  before  men- 
id,  the  Supreme  Court  shall  have  appellate  jurisdiction,  both  as 
■.  with  such  exceptions,  and  under  such  r<  gulations, 
as  the  Congress  Bhall  make."  Then  Congress  passed  the  act  t 
tablish  the  judicial  courts  of  the  United  States,  —  1  Stats,  at  Large, 
p.  78,  chap.  20,*—  and  in  the  13th  section  of  ii  declared  thai 
Sir  I  t shall  have  exclusively  ;ill  such  jurisdiction  of  suits 
or  proceedings  against  embassadors  or  other  public  ministers  or 
their  domestics  or  their  domestic  servants  as  a  court  of  law  can 
have  or  exercise  consistently  with  the  laws  of  nations,  and  original 
but  not  exclusive  jurisdiction  of  suits  brought  by  embassadors,  or 
other  public  ministers,  or  in  which  a  consul  or  vice-consul  shall  be  a 
party.  In  the  same  section  the  Supreme  Court  is  declared  to  have 
appellate  jurisdiction  in  cases  hereinafter  expressly  provided.  In 
this  section,  it  will  be  perceived  thai  the  jurisdiction  given,  besides 
that  which  is  mentioned  in  the  preceding  part  of  the  section,  is  an 
lusive  jurisdiction  ofsuits  or  proceedings  against  embassadors  or 
other  public  ministers  or  their  domestics  or  domestic  servants, 
court  oflaw  can  have  orexercise  consistently  with  the  laws  of  na- 
tions, and  original,  but  not  exclusive,  jurisdiction  of  all  suit-  brought 
by  embassadors,  or  other  public  ministers,  or  in  which  a  consul  or 
vice-consul  shall  be  a  party,  thus  guarding  them  from  all  other  ju- 
dicial interference  and  giving  to  them  the  right  to  prosecute  for 
their  own  benefit  in  the  courts  of  the  United  States.  Thus  sub- 
stantially reaffirming  the  constitutional  declaration  that  the  Su- 
preme Court  had  original  jurisdiction  in  all  cases  affecting  emb 
dors  and  other  public  ministers  and  consuls  and  those  in  which  a 
irty,  and  that  it  shall  have  appellate  jurisdiction 
in  all  other  cases  before  mentioned,  both  as  to  law  and  fact,  with 
eptions  and  under  such  regulations  as  the  Congress  shall 

make. 

I  appellate  powers  of  the  Supreme  Court,  as  granted  by  the 
Constitution,  are  limited  and  regulated  by  the  acts  of  Congress,  and 
must  be  exercised  subjeci  to  the  exception-  and  regulations  made 
by  <  ongress.  Durousseau  vs.  The  United  States,  6  ('ranch,  314; 
Ba  Ty  iw.Mercien,  5  How.  119;  United  Stal  vs.  Currey,  6  How. 
118  ;  Forsyth  vs.  United  States,  9  Bow.  571.     In  other  words,  the 

A   military  petition   before  US  we  think    not  to   be  within  the   letter  or  spirit  of 

ii'',Tt"'i"i-wrtn  l1"'  grants  of  appellate  jurisdiction  to  the  Supreme  Court.  It  is 
the  not  in  law  or  equity  within  the  meaning  of  those  term-',  as  used  in 
-'. ':' the  third  article  of  the  Constitution.     Nor  is  a  military  com:, 

meaning  of  the  1  1th  section  of  I  irj  Act 


APPENDIX.  341 


of  1 789.  That  act  is  denominated  to  be  one  to  establish  the  judicial 
courts  of  the  United  States,  and  the  14th  section  declares  that  all 
the  '  before-mentioned '  courts  of  the  United  States  shall  have 
power  to  issue  writs  of  scire  facias,  habeas  corpus,  and  all  other 
writs  not  specially  provided  for  by  statute, which  maybe  necessary 
for  the  exercise  of  their  respective  jurisdictions  agreeably  to  the 
principles  and  usages  of  law.  The  words  in  the  section,  '  the  be- 
fore-mentioned '  courts,  can  only  have  reference  to  such  courts  as 
were  established  in  the  preceding  part  of  the  act,  and  excludes  the 
idea  that  a  court  of  military  commission  can  be  one  of  them. 
Whatever  may  be  the  force  of  Vallandigham's  protest,  that  he  was 
not  triable  by  a  court  of  military  commission,  it  is  certain  that  his 
petition  cannot  be  brought  within  the  fourteenth  section  of  the  Act ; 
and  further  that  the  court  cannot,  without  disregarding  its  frequent 
decisions  and  interpretations  of  the  Constitution  in  respect  to  its  No certiorar 

judicial  power,  originate  a  writ  of  certiorari  to  review  or  pronounce  £*  <»n  issue 
•■  •  '•  °,,  j.  ,.  .,.,  K    .  T.  from  the 

any  opinion   upon  the  proceedings  ot  a  military   commission.     It  supreme 

was  natural,  before  the  sections  of  the  third  articles  of  the  Constitu- ( '.0lirt  t0  ra- 
tion had  been  fully  considered  in  connection  with  the  legislation  o£^^^^"0f 
Congress,  giving  to  the  courts  of  the  United  States  power  to  issue  a  military 
writs  of  scire  facias,  habeas  corpus,  and  all  other  writs  not  specially  c?mrais- 
provided  for  by  statute,  which  might  be  necessary  for  the  exercise 
of  their  respective  jurisdiction,  that  by  some  members  of  the  profes- 
sion it  should  have  been  thought,  and  some  of  the  early  judges  of 
the  Supreme  Court  also,  that  the  14th  section  of  the  Act  of  24th 
September,  1789,  gave  to  this  court  a  right  to  originate  processes  of 
habeas  corpus  ad  subjiciendum  and  writs  of  C(  rtiorari,  to  review  the 
proceedings  of  the  inferior  courts  as  a  matter  of  original  jurisdic- 
tion, without  being  in  any  way  restricted  by  the  constitutional  lim- 
itation that  in  all  cases  affecting  embassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  State  shall  be  a  party,  the  Su- 
preme Court  shall  have  original  jurisdiction. 

This  limitation  has  always  been  considered  restrictive  of  any 
other  original  jurisdiction.  The  rule  of  construction  of  the  Con- 
stitution being,  that  affirmative  words  in  the  Constitution  declaring 
in  what  cases  the  Supreme  Court  slnll  have  original  jurisdiction, 
must  be  construed  negatively  as  to  all  other  cases.  1  Cranch,  137; 
5  Peters,  284;  12  Peters,  637;  9  Wheaton;  G  YVheaton,  264. 

The  nature  and  extent  of  the  court's  appellate  jurisdiction  and 
its  want  of  it  to  issue  writs  of  habeas  corpus  ad  subjiciendum,  have 
been  fully  discussed  by  this  court  at  different  times.  We  do  not 
think  it  necessary,  however,  to  examine  or  cite  many  of  them  at 
this  time.  We  will  annex  a  list  to  this  opinion,  distinguishing  what 
this  court's  action  has  been  in  cases  brought  to  it  by  appeal,  from 
such  applications  as  have  been  rejected,  when  it  has  been  asked  that 
it  would  act  upon  the  matter  as  one  of  original  jurisdiction.  In  the 
case  Ex  parte  Milburn,  9  Peters,  704,  Chief  Justice  Marshall  said,  as 
the  jurisdiction  of  the  court  is  appellate,  it  must  first  lie  shown  t  hat  it 
has  the  power  to  award  a  habeas  corpus.  In  Ex  parte  Kaine,  I  I  How- 
ard, the  court  denied  the  niol  ion,  saying  that  the.  Court's  jurisdiction 
lo  award  the,  writ,  was  appellative,  and  that  the  case  had  not  been  so 

presented  to  it,  and  for  the  same  cause  refused  to  issue  a  writ  of 

certiorari,  which  in  the  course  of  the  argument  was  prayed  for.      In 

Ex  parte  Metzger,  5  How.  l  ?<;,  it  was  determined  that  a  writ  of 
<  rtioriri  could  not  he  allowed  to  examine  a  commitment  by  a.  dis- 
trict judge,  under  the  treaty  between  the  United  States  and  France, 


APPENDIX. 


v 


■ 


rtspr 

Court. 


d  thai  the  judge  exercised  a  special  authority,  and  that 
u  >  provision  li  id  been  made  for  the  revision  <>t'  liis  judgment.     So 

ial  authority.     In 
re  OS)  it  was  urged  thai  the  decision  in  Metzger's  case 
had  been  made  upon  the  ground  that  the  proceeding  of  the  distri  t 
judge  was  nut  judicial  in  it-  character,  l>ut  thai  the  proceedi 
the  military  commission  were  so;  and,  further,  it  \\a-  said  thai  the 
ruling  in  thai  case  had  been  overruled  by  a  majority  of  thej 
in  Kaine's  case.     There  is  a  misapprehension  of  the  reporl  of  the 
latter  case;  and  as  to  the  judicial  character  of  the  proceedi] 
the  military  commission,  we  cite  \\!nt  was  said  by  the  courl  in  the 
Ferreira.     "The  powers  conferred  by  Congress  upon  the 
district  judge  and  the  secretary  arc  judicial  in  their  nature,  for 

judgment  and  discretion  must  1 xer<  ised  by  both  of  them,  but  it 

is  not  judicial  in  either  case,  in  the  sense  in  which  the  judicial 
power  is  granted  to  the  courts  ■  e  United  States."  13  Howard, 
48. 

Nor  can  it  &i  said  that  the  authority  to  bt   <  zeroised  I"/  a  fn 

In  that  sense.     It  involves  discretion  to  exam- 
,-, .  but  then  is  no  original  jurisdiction  in  the 
Suprenu  Court  to  issu\   <>  writ  of  habeas  corpus  ad  subjiciendum  to 
'reversi  its  proceedings,  or  th(   i  iorarito  rex 

/   a  wry  commission.     And  as  to  the  President's 

action  in  such  matters,  and  those  acting  in  them  under  liis  author- 
ity, we  refer  to  t li« -  opinions  expressed  by  this  court  in  the  cases  of 
Martin  vs.  Mott,  1 2  Wheaton,  pages  19, 28 to  '■'<'>  inclusive  ;and  Dynes 
vs.  Hoover,  20  Howard,  page  65,  &c. 

For  the  i  n.  our  judgment  is,  that  the  wril  of 

rari  prayed  for  to  revise  and  review  the  proceedings  of  the  d 
commission,  by  which  Clement  L.   Vallandigham  was  tried,  sen- 
tenced, and  imprisoned,  nnist  be  denied,  and  so  do  we  order  ac- 
cording 


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